-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, F1NN6JV/Oq7Rhp4qBQEWbObzB1i6pMKUQ9B496nYS3xTasBfq1FxJwpj/15JCspt gTXgMeA2puQ4b6Q3xN02mQ== 0000950129-97-000023.txt : 19970106 0000950129-97-000023.hdr.sgml : 19970106 ACCESSION NUMBER: 0000950129-97-000023 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 19970103 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ADMINISTAFF INC \DE\ CENTRAL INDEX KEY: 0001000753 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HELP SUPPLY SERVICES [7363] IRS NUMBER: 760479645 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-96952 FILM NUMBER: 97500903 BUSINESS ADDRESS: STREET 1: 19001 CRESCENT SPRINGS DR CITY: KINGWOOD STATE: TX ZIP: 77339 BUSINESS PHONE: 7133588986 MAIL ADDRESS: STREET 1: 19001 CRESCENT SPRINGS DR CITY: KINGWOOD STATE: TX ZIP: 77339 S-1/A 1 ADMINISTAFF, INC. AMENDMENT NO.4 TO FORM S-1 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 3, 1997 REGISTRATION NO. 33-96952 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- AMENDMENT NO. 4 TO FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- ADMINISTAFF, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 7363 76-0479645 (STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER) 19001 CRESCENT SPRINGS DRIVE RICHARD G. RAWSON KINGWOOD, TEXAS 77339-3802 19001 CRESCENT SPRINGS DRIVE (281) 358-8986 KINGWOOD, TEXAS 77339-3802 (281) 358-8986 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE (NAME, ADDRESS, INCLUDING ZIP CODE, AND NUMBER, INCLUDING, TELEPHONE NUMBER, AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE INCLUDING AREA CODE, OF AGENT FOR SERVICE) OFFICES)
--------------------- Copies to: G. MICHAEL O'LEARY ROBERT F. GRAY, JR. ANDREWS & KURTH L.L.P. FULBRIGHT & JAWORSKI L.L.P. 4200 TEXAS COMMERCE TOWER 1301 MCKINNEY, SUITE 5100 HOUSTON, TEXAS 77002 HOUSTON, TEXAS 77010-3095 (713) 220-4200 (713) 651-5151
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the Registration Statement becomes effective. If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 ADMINISTAFF, INC. CROSS-REFERENCE SHEET PURSUANT TO ITEM 501(B) OF REGULATION S-K
ITEM NO. ITEM IN FORM S-1 LOCATION OR HEADING IN PROSPECTUS - ----- --------------------------------------------------- ----------------------------------- 1. Forepart of the Registration Statement and Outside Front Cover Page of Prospectus................... Outside Front Cover Page 2. Inside Front and Outside Back Cover Pages of Prospectus.................................... Inside Front Cover Page; Available Information 3. Summary Information, Risk Factors and Ratio of Earnings to Fixed Charges........................ Prospectus Summary; Risk Factors 4. Use of Proceeds.................................... Use of Proceeds 5. Determination of Offering Price.................... Outside Front Cover Page; Underwriters 6. Dilution........................................... Dilution 7. Selling Security Holders........................... Outside Front Cover Page; Principal and Selling Stockholders 8. Plan of Distribution............................... Front Cover Page; Underwriters 9. Description of the Securities to be Registered..... Front Cover Page; Summary; Capitalization; Description of Capital Stock; Underwriters 10. Interests of Named Experts and Counsel............. Legal Matters; Experts 11. Information With Respect to the Registrant......... Front Cover Page; Summary; Risk Factors; The Company; Dividend Policy; Selected Historical Consolidated Financial Data; Management's Discussion and Analysis of Financial Condition and Results of Operations; Business; Industry Regulation; Description of Capital Stock; Shares Eligible for Future Sale; Underwriters 12. Disclosure of Commission Position on Indemnification for Securities Act Liabilities... Not Applicable
3 *************************************************************************** * * * INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A * * REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED * * WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT * * BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE * * REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT * * CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY * * NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH * * SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO * * REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH * * STATE. * * * *************************************************************************** PROSPECTUS (Subject to Completion) Issued January 3, 1997 3,000,000 Shares [ADMINISTAFF LOGO] COMMON STOCK ------------------------ THE 3,000,000 SHARES OFFERED HEREBY ARE BEING SOLD BY ADMINISTAFF, INC. (THE "COMPANY"). PRIOR TO THIS OFFERING, THERE HAS BEEN NO PUBLIC MARKET FOR THE COMMON STOCK OF THE COMPANY. IT IS CURRENTLY ESTIMATED THAT THE INITIAL PUBLIC OFFERING PRICE WILL BE BETWEEN $13.00 AND $15.00 PER SHARE. SEE "UNDERWRITERS" FOR A DISCUSSION OF THE FACTORS TO BE CONSIDERED IN DETERMINING THE INITIAL PUBLIC OFFERING PRICE. THE COMMON STOCK HAS BEEN APPROVED FOR LISTING ON THE NEW YORK STOCK EXCHANGE, SUBJECT TO OFFICIAL NOTICE OF ISSUANCE, UNDER THE SYMBOL "ASF." ------------------------ SEE "RISK FACTORS" BEGINNING ON PAGE 10 FOR INFORMATION THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS. ------------------------ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ------------------------ PRICE $ A SHARE ------------------------
UNDERWRITING PRICE DISCOUNTS AND PROCEEDS TO TO PUBLIC COMMISSIONS(1) COMPANY (2) ----------------------- ----------------------- ----------------------- Per Share................ $ $ $ Total (3)................ $ $ $
- --------------- (1) The Company has agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933. See "Underwriters." (2) Before deducting expenses payable by the Company estimated at $1,750,000. (3) The Selling Stockholders have granted to the Underwriters an option, exercisable within 30 days of the date hereof, to purchase up to an aggregate of 450,000 additional Shares at the price to public less underwriting discounts and commissions, for the purpose of covering over-allotments, if any. See "Principal and Selling Stockholders." The Company will not receive any of the proceeds from any such sale of Shares by the Selling Stockholders. If the Underwriters exercise this option in full, the total price to public, underwriting discounts and commissions, and proceeds to Selling Stockholders will be $ , $ and $ , respectively. See "Underwriters." The Shares are offered, subject to prior sale, when, as and if accepted by the Underwriters named herein and subject to the approval of certain legal matters by Fulbright & Jaworski L.L.P., counsel for the Underwriters. It is expected that delivery of the Shares will be made on or about , 1997 at the office of Morgan Stanley & Co. Incorporated, New York, N.Y., against payment therefor in New York funds. ------------------------ MORGAN STANLEY & CO. Incorporated DONALDSON, LUFKIN & JENRETTE Securities Corporation January , 1997 4 [Octagonal chart depicting the Company's Personnel Management System, including a graphic depiction of the services which the Company provides.] 5 NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OFFERED HEREBY TO ANY PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION TO SUCH PERSON. UNTIL , 1997 ALL DEALERS EFFECTING TRANSACTIONS IN THE REGISTERED SECURITIES, WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS. ------------------------ TABLE OF CONTENTS
PAGE ---- Available Information........................... 3 Summary......................................... 4 Risk Factors.................................... 10 The Company..................................... 17 Use of Proceeds................................. 17 Dividend Policy................................. 18 Capitalization.................................. 18 Dilution........................................ 19 Selected Historical Consolidated Financial Data.......................................... 20 Management's Discussion and Analysis of Financial Condition and Results of Operations.................................... 22 PAGE ---- Business........................................ 33 Industry Regulation............................. 44 Management...................................... 49 Principal and Selling Stockholders.............. 56 Description of Capital Stock.................... 58 Shares Eligible for Future Sale................. 60 Underwriters.................................... 62 Legal Matters................................... 63 Experts......................................... 63 Index to Consolidated Financial Statements...... F-1
------------------------ The Company intends to furnish its stockholders annual reports containing consolidated financial statements examined by an independent public accounting firm. AVAILABLE INFORMATION The Company has not previously been subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Company has filed with the Securities and Exchange Commission (the "Commission") a Registration Statement (which term shall include any amendments thereto) on Form S-1 under the Securities Act with respect to the shares of Common Stock offered hereby. This Prospectus, which constitutes a part of the Registration Statement, does not contain all of the information set forth in the Registration Statement, certain portions of which have been omitted as permitted by the rules and regulations of the Commission. For further information with respect to the Company and the Common Stock, reference is made to the Registration Statement, including the exhibits and schedules thereto, copies of which may be examined without charge at the Commission's principal office at 450 Fifth Street, N.W., Washington, D.C. 20549 and the regional offices of the Commission located at 7 World Trade Center, New York, New York 10048 and 500 West Madison Street, 14th Floor, Chicago, Illinois 60661. Copies of such materials may be obtained from the Public Reference Section of the Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at its public reference facilities in New York, New York and Chicago, Illinois, at prescribed rates, or on the Internet at http://www.sec.gov. Statements contained in this Prospectus as to the contents of any contract or other document are not necessarily complete, and in each instance reference is made to the copy of such contract or other document filed as an exhibit to the Registration Statement, each statement being qualified in all respects by such reference. Copies of materials filed with the Commission may also be inspected at the offices of The New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005. ------------------------ IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK OF THE COMPANY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. 3 6 SUMMARY The following summary is qualified in its entirety by the more detailed information and financial statements, including the notes thereto, which appear elsewhere in this Prospectus. This Prospectus contains certain forward-looking statements with respect to the business of the Company and the industry in which it operates. These forward-looking statements are subject to certain risks and uncertainties which may cause actual results to differ significantly from such forward-looking statements. See "Risk Factors." THE COMPANY Administaff, Inc. ("Administaff" or the "Company") is a leading provider of professional employer services, both in terms of number of worksite employees and in terms of revenues, with current operations in 10 markets. The Company serves over 1,500 client companies with approximately 23,800 worksite employees as of December 31, 1996 and believes that it currently ranks, in terms of revenues, as one of the three largest professional employer organizations in the United States. The Company has grown significantly since it was founded in 1986. Revenues (which include the payroll of worksite employees) were $4.1 million for 1987, the Company's first full year of operations, and increased to over $716 million for fiscal 1995, with 1995 gross profit and net income of $28.9 million and $1.1 million, respectively. Houston is the Company's original location and accounted for approximately 50% of the Company's revenues as of September 30, 1996, with other Texas markets accounting for an additional 30%. In October 1993, the Company opened a sales office in Dallas as the first step in implementing a long-term internal growth and expansion strategy. Subsequent to obtaining expansion capital in May 1994, the Company opened sales offices in Atlanta, Phoenix, Chicago and Washington D.C. during a twelve month period beginning in October 1994. The Company opened a second office in Dallas in January 1996 and opened an office in Denver in September 1996. The Company plans to enter at least one new market or open at least one additional sales office in an existing market in each quarter of 1997 and 1998. Administaff's goal is to improve the productivity and profitability of small businesses (generally, businesses with 100 or fewer employees) by relieving business owners and key executives of administrative and regulatory burdens, enabling them to focus on the core competencies of their businesses, and by promoting employee satisfaction through human resource management techniques that improve employee performance. The Company provides a comprehensive personnel management system which encompasses a broad range of services, including benefits and payroll administration, medical and workers' compensation insurance programs, payroll tax filings, personnel records management, liability management and other human resource services. The fees charged by the Company (which averaged approximately 123.6% of total payroll costs during the nine-month period ended September 30, 1996) are invoiced along with each periodic payroll of the client and include the gross payroll of each client plus the Company's estimated costs of paying employment related taxes, providing human resource services, performing administrative functions, providing insurance coverages and benefit plans and performing other services offered by the Company. Administaff provides these services by entering into a Client Service Agreement which establishes a three party relationship whereby the Company and client act as co-employers of the worksite employees. Responsibilities are allocated between the co-employers pursuant to the Client Service Agreement, with Administaff assuming responsibility for personnel administration and compliance with most employment-related governmental regulations. The client company retains the employee's services in its business and remains the employer for various other purposes. Companies providing comprehensive services in this manner have come to be known as professional employer organizations, or PEOs, as distinguished from "fee for service" companies, such as payroll processing firms, human resource consultants and safety consulting firms, that provide a specific service to a client under a traditional two party contract. Growth in the PEO industry has been significant. According to the National Association of Professional Employer Organizations ("NAPEO"), the number of employees under PEO arrangements in the United States has grown from approximately 10,000 in 1984 to approximately 2.0 million in 1995. NAPEO statistics also reflect gross revenues earned by the PEO industry grew from $5.0 billion in 1991 to $13.8 billion in 1995, 4 7 representing a compounded annual growth rate of approximately 29%. Despite this industry growth, the Company believes that the target markets for its business remain relatively untapped. NAPEO estimates that at the end of 1995 the PEO industry served only approximately 70,000 businesses in the United States. In contrast, the Small Business Administration (the "SBA") estimates that net annual growth in the number of small businesses is approximately 75,000. Administaff believes that growth in the PEO industry is driven by the increasingly complex legal and regulatory burdens placed on employers as well as trends relating to the growth and productivity of the small business community in the United States. The Company believes that the key factors which drive small businesses to consider PEO services include (i) complex regulation of labor and employment issues and the related costs of compliance, including the allocation of time and effort to such functions by owners and key executives, (ii) the need to provide competitive health care and related benefits to attract and retain quality employees to small businesses and (iii) the increasing costs associated with workers' compensation and health insurance coverage, workplace safety programs and employee related complaints and litigation. Growth in the PEO industry has also been influenced by growth of the small business sector. According to reports published by the SBA, at year end 1994 there were more than 5.9 million businesses in the United States with fewer than 100 employees, up from 3.9 million of such businesses at the end of 1980. In addition, the Company believes that attempts to achieve higher levels of productivity in the workplace have supported a movement toward the outsourcing of services such as payroll administration and consulting on benefits, safety and other employee related issues. Administaff believes that its specific model for delivery of a comprehensive package of PEO services directly supports the small business goal of improving productivity and competitiveness. STRATEGY The Company's objective is to become the leading provider of PEO services in the United States while achieving sustainable revenue and income growth. Key elements of the Company's strategy were developed by the Company's core management team which has remained in place since the Company's founding in 1986. Since that time, the Company has concentrated substantial financial and management resources on developing, defining and optimizing a personnel management system for small businesses and on building an organizational infrastructure designed to enable the Company to replicate proven growth patterns while balancing revenue and income growth objectives. The key elements of the Company's strategy include: - Providing the highest quality services to help improve the productivity and profitability of the Company's clients. Administaff focuses on providing high quality services that directly enhance the productivity and profitability of small businesses. Achieving these efficiencies not only provides an obvious benefit to clients, it also benefits the Company in three distinct ways. First, to the extent that enhanced productivity results in client growth, Administaff's revenue base also grows. Second, clients who experience improved profitability best understand the value of Administaff's services and prove to be the Company's most effective referral sources. Finally, client productivity facilitated by Administaff promotes a long-term client relationship. Although the Company's client service agreement provides for only a one year initial term and is terminable on 30-day's notice at any time, in excess of 80% of Administaff's clients remain for more than one year and the retention rate increases for clients who remain with Administaff for longer periods. In accordance with NAPEO standards, retention rates are calculated by dividing the number of Company clients at December 31 by the number of clients at January 1 of the same year plus clients added during such year. - Continuing to enter and establish a leading position in new markets. In 1993, the Company identified 36 markets as its most attractive expansion targets and since that time has opened sales offices in six of these markets. The Company initially plans to enter at least one new market or open one additional sales office in an existing market in each quarter of 1997 and 1998 and believes that the proceeds from this offering will be sufficient to cover the costs of such expansion. Through the use of a market selection model which evaluates a broad range of criteria, Administaff selects new markets where it believes it is most likely to replicate its historical growth patterns and 5 8 market penetration. While most of the Company's expansion has been the result of opening sales offices, the Company has and will continue to consider expansion through strategic acquisitions. The Company believes that increasing industry regulatory complexity, including the difficulties of complying with the applicable state laws and the increasing capital commitments required of PEOs to provide larger service delivery infrastructures and management information systems should lead to significant consolidation opportunities in the PEO industry. The Company's market development strategy combines intensive direct marketing efforts with a fully integrated public relations and advertising campaign. While the expense associated with entering and developing a new market is significant, the Company views this investment as essential to achieving desired growth and extending its national leadership position. The Company generally expects expenses in a new market to be covered by the gross profit from that market within two years. - Growing existing markets through additional market penetration and marketing alliances. The Company believes that additional market penetration in established markets offers significant growth potential. Based on information contained in a database developed by American Business Information, Inc. ("ABI"), the Company believes that it serves less than 6.0% of the total number of businesses in Houston meeting its target criteria described below. In established markets, the Company's ability to achieve its growth objectives is enhanced by a higher number of referrals, a higher client retention rate, a more experienced sales force and momentum in its marketing efforts. The Company is also actively pursuing the formation of certain strategic alliances with other providers of various administrative and office services to small businesses as an alternative method for achieving growth in existing markets. The Company selectively opens additional sales offices and hires additional sales personnel in established markets to capitalize on these advantages and to achieve higher penetration. - Targeting and enrolling clients that are consistent with the Company's overall strategy and risk profile objectives. The Company seeks to attract clients whose objectives in utilizing Administaff's PEO services primarily relate to enhancing productivity rather than short-term cost cutting. The Company's clients tend to be established, financially successful and likely to recognize the value of a broad range of services which enable the client to concentrate on its core business. Administaff's target client has from five to 100 employees and must meet certain additional criteria relating to industrial classification, workers' compensation, health and unemployment claims history and operating stability. These criteria, which constitute part of the Company's screening process, are intended to avoid a skewing of the Company's client base to higher risk clients. Through this process, the Company seeks to continue to build a solid client base characterized by high year-to-year retention and client employee growth while maintaining a predictable and controllable direct cost structure. - Capitalizing on economies of scale while actively managing and controlling direct costs. The Company enjoys economies of scale which allow it to provide small businesses with a level of human resource management typically found only in large corporations. The Company aggressively pursues scale advantages in order to maximize profits and to provide its clients with premium services at competitive prices. In this regard, Administaff focuses on key relationships with insurance providers to design coverage and premium structures that not only provide cost effective and appropriate protection for clients, but also enable the Company to control major components of its direct costs. These economies and tailored coverages are achievable both because of the Company's sophistication as a purchaser of insurance products and its status as a large customer of such providers. The Company also employs a variety of proactive personnel management techniques to help minimize the incidence and magnitude of employee claims, complaints and related costs. The Company expects that the economies resulting from active control and management of direct costs will continue to enhance profitability. No assurance can be given that the Company will be successful in implementing its strategy or that, even if successful, such implementation will have the intended effects on the Company's future revenue, operating expenses or net income. 6 9 THE OFFERING Common Stock offered by the Company.................. 3,000,000 shares Common Stock offered by the Selling Stockholders..... 450,000 shares if the Underwriters' over-allotment option is exercised in full Common Stock to be outstanding after the offering................. 13,377,329 shares(1) Use of proceeds to the Company.................. Of the $37.3 million of estimated net proceeds to the Company (based on an offering price of $14.00 per share), approximately $12 million will be reserved to support expansion of the Company's operations, including the opening of new geographic markets, further penetration of existing markets by opening new sales offices and, as opportunities arise, expansion of the Company's client base in new or existing markets through an acquisition of an existing PEO office. Approximately $4.0 million of the remaining net proceeds will be used to repay certain outstanding subordinated notes, $2.5 million to exercise certain options to repurchase Common Stock and Common Stock warrants, and $0.7 million to repay certain mortgage indebtedness. The balance of the net proceeds will be used for working capital purposes, which may include acquisitions of existing PEO operations. The Company will not receive any of the net proceeds attributable to the sale of shares of Common Stock by the Selling Stockholders. See "Use of Proceeds." Proposed New York Stock Exchange listing......... The New York Stock Exchange (the "NYSE") has approved the Common Stock for listing, subject to official notice of issuance, under the symbol "ASF." - --------------- (1) The number of shares to be outstanding after the offering as of January 3, 1997 gives effect to the repurchase of Common Stock and Common Stock warrants as described under "Use of Proceeds," and excludes the 1,027,613 shares of Common Stock issuable upon the exercise of options and warrants (at a weighted average exercise price of $5.82 per share as of January 3, 1997) which will remain outstanding after consummation of the offering. RISK FACTORS See "Risk Factors" beginning on page 10 for information that should be considered by prospective investors. Such risk factors include an ongoing audit by the Internal Revenue Service (the "IRS") of the Company's 401(k) plan (the "401(k) Plan") and a related employee leasing market segment group study being conducted by the IRS; certain 401(k) Plan compliance costs incurred by the Company; state and local regulations; risks of increases in health insurance, unemployment taxes and workers' compensation rates; liabilities for client and employee actions; liability for worksite employee payroll; possible loss of benefit plans; possible adverse application of other federal and state laws; geographic market concentration; competition and new market entrants; adequacy of accrued workers' compensation claims; quarterly fluctuations in earnings and impact of employment related taxes; potential client liability for employment taxes; dependence on key personnel; expenses associated with expansion; failure to manage growth; need to renew or replace client companies; anti-takeover effects of certain provisions of the Company's charter and bylaws and Delaware Law; control by existing stockholders; broad discretion over use of the net proceeds of this offering; absence of prior trading market and potential volatility of stock price; shares eligible for future sale; dilution; and the lack of dividends. 7 10 SUMMARY FINANCIAL DATA The following summary financial data should be read in conjunction with the Consolidated Financial Statements, including the Notes thereto, and "Management's Discussion and Analysis of Financial Condition and Results of Operations." The statement of operations data set forth below with respect to the years ended December 31, 1993, 1994 and 1995 are derived from, and are qualified by reference to, the audited consolidated financial statements included elsewhere in this Prospectus. The statement of operations data for the years ended December 31, 1991 and 1992 are derived from audited consolidated financial statements not included herein. The statement of operations data for the nine months ended September 30, 1995 and 1996 and the balance sheet data as of September 30, 1996 are unaudited. The unaudited results of operations for the nine months ended September 30, 1996 are not necessarily indicative of results expected for the full year. (See "Management's Discussion and Analysis of Financial Condition and Results of Operations -- Quarterly Operating Results").
NINE MONTHS ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31, (UNAUDITED) -------------------------------------------------------- -------------------- 1991 1992 1993 1994 1995 1995 1996 -------- -------- -------- -------- -------- -------- -------- (IN THOUSANDS, EXCEPT FOR PER SHARE AND STATISTICAL DATA) STATEMENT OF OPERATIONS DATA: Revenues(1)............................. $300,051 $409,046 $496,058 $564,459 $716,210 $505,619 $635,252 Direct costs(1): Salaries and wages of worksite employees........................... 241,471 328,223 397,662 453,750 582,893 408,379 517,820 Benefits and payroll taxes............ 49,542 67,272 78,614 85,513 104,444 76,964 91,307 -------- -------- -------- -------- -------- -------- -------- Gross profit............................ 9,038 13,551 19,782 25,196 28,873 20,276 26,125 Operating expenses: Salaries, wages and payroll taxes..... 3,090 5,077 6,136 8,094 10,951 8,055 10,475 General and administrative expenses... 3,008 4,788 5,571 5,648 7,597 5,497 5,937 Commissions........................... 1,787 2,569 2,975 3,231 3,942 2,908 2,939 Advertising........................... 849 888 1,612 1,797 3,268 2,125 2,488 Depreciation and amortization......... 260 282 361 567 894 627 1,063 -------- -------- -------- -------- -------- -------- -------- Total operating expenses.............. 8,994 13,604 16,655 19,337 26,652 19,212 22,902 -------- -------- -------- -------- -------- -------- -------- Operating income (loss)(2).............. $ 44 $ (53) $ 3,127 $ 5,859 $ 2,221 $ 1,064 $ 3,223 Net income(2)........................... $ 70 $ 33 $ 1,949 $ 3,766 $ 1,116 $ 617 $ 614(3) Net income per share(4)................. $ 0.01 $ 0.00 $ 0.22 $ 0.37 $ 0.10 $ 0.06 $ 0.06(3) Weighted average shares outstanding(4)........................ 6,439 8,591 8,848 10,347 10,817 10,767 10,873 Supplemental net income per share(5).... $ 0.16 $ 0.10 STATISTICAL DATA: Worksite employees at period end(6)..... 11,380 13,490 15,165 15,780 20,502 20,124 22,993 Client companies at period end.......... 501 598 687 809 1,130 1,085 1,441 Gross payroll per employee per month(7).............................. $ 1,823 $ 1,919 $ 2,117 $ 2,268 $ 2,331 $ 2,297 $ 2,522
SEPTEMBER 30, 1996 (UNAUDITED) ------------------------ ACTUAL ADJUSTED(8) -------- ----------- CONSOLIDATED BALANCE SHEET DATA: Working capital........................................................................... $ 3,303 $ 33,502 Total assets.............................................................................. 45,134 75,259 Total debt................................................................................ 4,648 -- Total stockholders' equity................................................................ 11,303 46,076
- --------------- (1) Revenues consist of service fees paid by the Company's clients under its Client Service Agreements. In consideration for payment of such service fees, the Company agrees to pay the following direct costs associated with the worksite employees: (i) salaries and wages, (ii) employment related taxes, (iii) employee benefit plan premiums, (iv) workers' compensation insurance premiums and (v) administrative costs and related expenses. 8 11 (2) Operating income (loss) and net income include the effects of expenses associated with the Company's expansion plan which began in 1993. See "Management's Discussion and Analysis of Financial Condition and Results of Operations." (3) For the nine months ended September 30, 1996, net income and net income per share were $1,791,000 and $0.16, respectively, excluding the impact of a non-recurring charge relating to certain issues involving the failure of the Company's 401(k) Plan to comply with certain nondiscrimination tests required by the Internal Revenue Code of 1986, as amended, which impact has been adjusted for income taxes and is net of amounts recoverable from the 401(k) Plan record keeper. See "Risk Factors -- Costs of 401(k) Plan Compliance," "Industry Regulation -- Employee Benefit Plans" and Note 4 of Notes to Consolidated Financial Statements (unaudited) for the nine months ended September 30, 1996. (4) Computed as described in Note 1 of Notes to Consolidated Financial Statements. (5) Computed as described in Note 11 of Notes to Consolidated Financial Statements. (6) Reflects the number of employees paid during the last month of the period shown. (7) Excludes bonus payroll of worksite employees, which is not subject to the Company's normal service fee. (8) Adjusted to reflect the sale of 3,000,000 shares of Common Stock by the Company pursuant to the offering made hereby (assuming an offering price of $14.00 per share) and the application of the net proceeds therefrom as described in "Use of Proceeds." 9 12 RISK FACTORS An investment in the Company involves a significant degree of risk. Prospective purchasers should carefully consider the factors set forth below, as well as the other information provided elsewhere in this Prospectus, before making an investment in the Common Stock. When used in this Prospectus, the words "anticipate," "estimate," "project" and similar expressions are intended to identify forward-looking statements. Such statements are subject to certain risks, uncertainties and assumptions. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those anticipated, estimated or projected. Among the key factors that have a direct bearing on the Company's results of operations and the PEO industry in which it operates are the effects of various governmental regulations, the fluctuation of the Company's direct costs and the costs and effectiveness of the Company's expansion strategy. These and other factors are discussed below and elsewhere in this Prospectus. IRS AUDIT OF THE COMPANY'S 401(K) PLAN; IRS EMPLOYEE LEASING MARKET SEGMENT GROUP The Company's 401(k) Plan is currently under audit by the Internal Revenue Service ("IRS") for the year ended December 31, 1993. Although the audit is for the 1993 plan year, certain conclusions of the IRS would be applicable to other years as well. In addition, the IRS has established an Employee Leasing Market Segment Group for the purpose of identifying specific compliance issues prevalent in certain segments of the PEO industry. Approximately 70 PEOs, including the Company, have been randomly selected by the IRS for audit pursuant to this program. One issue that has arisen from these audits is whether a PEO can be a co-employer of worksite employees, including officers and owners of client companies, for various purposes under the Internal Revenue Code of 1986, as amended (the "Code"), including participation in the PEO's 401(k) plan. For a discussion of the issues being considered by the Market Segment Group, see "Industry Regulation -- Employee Benefit Plans" and "-- Federal Employment Taxes." With respect to the 401(k) Plan audit, the Company understands that the IRS Houston District intends to seek technical advice (the "Technical Advice Request") from the IRS National Office about (1) whether participation in the 401(k) Plan by worksite employees, including officers of client companies, violates the exclusive benefit rule under the Code because they are not employees of the Company and (2) whether the 401(k) Plan's failure to satisfy a nondiscrimination test relating to contributions should result in disqualification of the 401(k) Plan because the Company has failed to provide evidence that it satisfies an alternative discrimination test. A draft copy of the Technical Advice Request has been sent to the Company for its comments before the IRS Houston District submits it to the IRS National Office. The draft of the Technical Advice Request contains the conclusions of the IRS Houston District with respect to the 1993 plan year that the 401(k) Plan should be disqualified because it (1) covers worksite employees who are not employees of the Company and (2) failed a nondiscrimination test applicable to contributions and the Company has not furnished evidence that the 401(k) Plan satisfies an alternative test. The Company also understands that, with respect to the Market Segment study, the issue of whether a PEO and a client company may be treated as co-employers of worksite employees for certain federal tax purposes (the "Industry Issue") is being referred to the IRS National Office. Whether the National Office will address the Technical Advice Request independently of the Industry Issue is unclear. The Company is not able to predict either the timing or the nature of any final decision that may be reached with respect to the 401(k) Plan audit or with respect to the Technical Advice Request or the Market Segment Group study and the ultimate outcome of such decisions. Should the IRS conclude that the Company is not a "co-employer" of worksite employees for purposes of the Code, worksite employees could not continue to make salary deferral contributions to the 401(k) Plan or pursuant to the Company's cafeteria plan or continue to participate in certain other employee benefit plans of the Company. The Company believes that, although unfavorable to the Company, a prospective application of such a conclusion (that is, one applicable only to periods after the conclusion by the IRS is finalized) would not have a material adverse effect on its financial position or results of operations, as the Company could continue to make available comparable benefit programs to its client companies at comparable costs to the Company. However, if the IRS National Office adopts the conclusions of the IRS Houston District set forth in the Technical Advice Request and any such conclusion were applied retroactively to disqualify the 401(k) Plan for 1993 and 10 13 subsequent years, employees' vested account balances under the 401(k) Plan would become taxable, the Company would lose its tax deductions to the extent its matching contributions were not vested, the 401(k) Plan's trust would become a taxable trust and the Company would be subject to liability with respect to its failure to withhold applicable taxes with respect to certain contributions and trust earnings. Further, the Company would be subject to liability, including penalties, with respect to its cafeteria plan for the failure to withhold and pay taxes applicable to salary deferral contributions by employees, including worksite employees. In such a scenario, the Company also would face the risk of client dissatisfaction and potential litigation. A retroactive application by the IRS of an adverse conclusion resulting in disqualification of the 401(k) Plan would have a material adverse effect on the Company's financial position and results of operations. COSTS OF 401(K) PLAN COMPLIANCE In 1991 the Company engaged a third party vendor to be the 401(k) Plan's record keeper and to perform certain required annual nondiscrimination tests for the 401(k) Plan. Each year such record keeper reported to the Company that such nondiscrimination tests had been satisfied. However, in August 1996 the 401(k) Plan's record keeper advised the Company that certain of these tests had been performed incorrectly for prior years and, in fact, that the 401(k) Plan had failed certain tests for the 1993, 1994 and 1995 plan years. The Company has subsequently determined that the 401(k) Plan also failed a nondiscrimination test for 1991 and 1992, closed years for tax purposes. At the time the Company received such notice, the period in which the Company could voluntarily "cure" this operational defect had lapsed for all such years, except 1995. With respect to the 1995 year, the Company has caused the 401(k) Plan to refund the required excess contributions and earnings thereon to affected highly compensated participants, and the Company will pay an excise tax of approximately $51,000. Because the 401(k) Plan is under a current IRS audit, the IRS voluntary correction program for this type of operational defect is not available to the Company for years prior to 1995. Accordingly, the Company informed the IRS of the prior testing errors for each of 1991, 1992, 1993 and 1994 and proposed a correction that consists of corrective contributions by the Company to the 401(k) Plan with respect to these years (including the closed years) and the payment by the Company of the minimum penalty ($1,000) that the IRS is authorized to accept to resolve this issue. The IRS Houston District has indicated that resolution of the nondiscrimination test failures is premature until the National Office resolves the issues presented in the Technical Advice Request. No assurance can be given that the IRS will permit the Company to administratively "cure" this operational defect instead of proposing a disqualification of the 401(k) Plan. The Company recorded a reserve during the third quarter of 1996 with respect to these 401(k) Plan issues. The amount of such reserve is the Company's estimate of the cost of corrective measures and penalties, although no assurance can be given that the actual amount that the Company may ultimately be required to pay will not substantially exceed the amount so reserved. In addition, the Company has recorded an asset for an amount recoverable from the 401(k) Plan's record keeper should the Company ultimately be required to pay the amount accrued for such corrective measures and penalties. Based on its understanding of the settlement experience of other companies, the Company does not believe that the ultimate resolution of the nondiscrimination test issue will have a material adverse effect on the Company's financial condition or results of operations, although no assurance can be given by the Company that such will be the case because the ultimate resolution of this issue will be determined in a negotiation process with the IRS or in litigation. See Note 4 of Notes to the Company's Consolidated Financial Statements (unaudited) for the nine months ended September 30, 1996 included elsewhere in this Prospectus. STATE AND LOCAL REGULATION The Company employs worksite employees in over 40 states and is, therefore, subject to regulation by various local and state agencies pertaining to a wide variety of labor related laws. As is the case with the provisions of the Code discussed above, many of these regulations were developed prior to the emergence of the PEO industry and do not specifically address non-traditional employers. Prior to 1993, the State Board of Insurance of Texas and the Texas Employment Commission challenged the ability of a PEO to provide workers' compensation insurance and health benefits and to pay unemployment taxes as an employer of worksite employees. These challenges were ultimately addressed through the passage of specific professional employer licensing legislation in Texas. There can be no assurance that additional challenges will not be faced 11 14 in Texas or that similar challenges will not be encountered in other jurisdictions in which the Company may choose to do business. See "Industry Regulation -- State Regulation." While many states do not explicitly regulate PEOs, 16 states (including Texas) have passed laws that have licensing or registration requirements for PEOs and at least four states are considering such regulation. Such laws vary from state to state but generally provide for monitoring the fiscal responsibility of PEOs. While the Company generally supports licensing regulation because it serves to validate the PEO relationship, there can be no assurance that the Company will be able to satisfy licensing requirements or other applicable regulations of any particular state in which it is not currently operating but later commences operations. In addition, there can be no assurance that the Company will be able to renew its licenses in the states in which it currently operates upon expiration of such licenses. For a more complete description of these regulations, see "Industry Regulation -- State Regulation." INCREASES IN HEALTH INSURANCE PREMIUMS, UNEMPLOYMENT TAXES AND WORKERS' COMPENSATION RATES Health insurance premiums, state unemployment taxes and workers' compensation rates are in part determined by the Company's claims experience and comprise a significant portion of the Company's direct costs. The Company employs extensive risk management procedures in an attempt to control its claims incidence. However, should the Company experience a large increase in claim activity, its unemployment taxes, health insurance premiums or workers' compensation insurance rates may increase. The Company's ability to incorporate such increases into service fees to clients is constrained by contractual arrangements with clients, which may result in a delay before such increases can be reflected in service fees. As a result, such increases could have a material adverse effect on the Company's financial condition or results of operations. LIABILITIES FOR CLIENT AND EMPLOYEE ACTIONS A number of legal issues remain unresolved with respect to the co-employment arrangement between a PEO and its worksite employees, including questions concerning the ultimate liability for violations of employment and discrimination laws. The Administaff Client Service Agreement establishes the contractual division of responsibilities between the Company and its clients for various personnel management matters, including compliance with and liability under various governmental regulations. However, because the Company acts as a co-employer, the Company may be subject to liability for violations of these or other laws despite these contractual provisions, even if it does not participate in such violations. Although the Client Service Agreement provides that the client is to indemnify the Company for any liability attributable to the conduct of the client, the Company may not be able to collect on such a contractual indemnification claim and thus may be responsible for satisfying such liabilities. In addition, worksite employees may be deemed to be agents of the Company, subjecting the Company to liability for the actions of such worksite employees. See "Business -- Customers" and "Industry Regulation." LIABILITY FOR WORKSITE EMPLOYEE PAYROLL Under the Administaff Client Service Agreement, the Company becomes a co-employer of worksite employees and assumes the obligations to pay the salaries, wages and related benefit costs and payroll taxes of such worksite employees. As such a co-employer, the Company assumes such obligations as a principal, not merely as an agent of the client company. The Company's obligations include responsibility for (i) payment of the salaries and wages for work performed by worksite employees, regardless of whether the client company makes timely payment to the Company of the associated service fee, and (ii) providing benefits to worksite employees even if the costs incurred by Administaff to provide such benefits exceed the fees paid by the client company. During the period from January 1, 1987 through September 30, 1996, the Company has recorded a total of $419,000 in bad debt expense on approximately $3.4 billion of total revenues. There can be no assurance that the Company's ultimate liability for worksite employee payroll and benefits costs will not have a material adverse effect on its financial condition or results of operations. See "Management's Discussion and Analysis of Financial Condition and Results of Operations -- Direct Costs." 12 15 LOSS OF BENEFIT PLANS The maintenance of health and workers' compensation insurance plans that cover worksite employees is a significant part of the Company's business. The current health and workers' compensation contracts are provided by vendors with whom the Company has an established relationship, and on terms that the Company believes to be favorable. While the Company believes that replacement contracts could be secured on competitive terms without causing significant disruption to the Company's business, there can be no assurance in this regard. POSSIBLE ADVERSE APPLICATION OF OTHER FEDERAL AND STATE LAWS As a major employer, the Company's operations are affected by numerous federal and state laws relating to labor, tax (in addition to the provisions of the Code discussed above) and employment matters. By entering into a co-employer relationship with employees assigned to work at client company locations, the Company assumes certain obligations and responsibilities of an employer under these laws. However, many of these laws (such as the Employee Retirement Income Security Act ("ERISA") and federal and state employment tax laws) do not specifically address the obligations and responsibilities of non-traditional employers such as PEOs, and the definition of "employer" under these laws is not uniform. In addition, many of the states in which the Company operates have not addressed the PEO relationship for purposes of compliance with applicable state laws governing the employer/employee relationship. If these other federal or state laws are ultimately applied to the Company's PEO relationship with its worksite employees in a manner adverse to the Company, such an application could have a material adverse effect on the Company's results of operations or financial condition. See "Industry Regulation." GEOGRAPHIC MARKET CONCENTRATION While the Company has operations in 10 markets, six of these represent recent expansions. The Company's Houston and Texas (including Houston) markets accounted for approximately 50% and 80%, respectively, of the Company's revenue base as of September 30, 1996. Accordingly, while a primary aspect of the Company's strategy is expansion in its current and future markets outside of Texas, for the foreseeable future a significant portion of the Company's revenues may be subject to economic factors specific to Texas (including Houston). In addition, while the Company believes that its market expansion plans will eventually lessen or eliminate this risk in addition to generating significant revenue growth, there can be no assurance that the Company will be able to duplicate in other markets the revenue growth and operating results experienced in its Texas (including Houston) markets. See "Business -- Strategy." COMPETITION AND NEW MARKET ENTRANTS The PEO industry is highly fragmented, with approximately 2,000 companies performing PEO services to some extent. Many of these companies have limited operations and fewer than 1,000 worksite employees, but there are several industry participants which are comparable in size to the Company. These companies include Staff Leasing, Inc, headquartered in Bradenton, Florida, Employee Solutions, Inc., headquartered in Phoenix, Arizona and The Vincam Group, Inc., headquartered in Coral Gables, Florida. The Company also encounters competition from "fee for service" companies such as payroll processing firms, insurance companies and human resource consultants. Moreover, the Company expects that as the PEO industry grows and its regulatory framework becomes better established, well organized competition with greater resources than the Company may enter the PEO market, possibly including large "fee for service" companies currently providing a more limited range of services. ADEQUACY OF ACCRUED WORKERS' COMPENSATION CLAIMS Prior to November 1994, when the Company purchased a guaranteed cost workers' compensation insurance policy, the Company maintained loss-sensitive policies, effectively leaving primary liability for workers' compensation claims with the Company. The Company maintains an accrual for workers' compensation claims for the periods such policies were in place and bases the amount of such accruals on periodic 13 16 reviews of open claims. While the Company believes all such open claims are covered through an existing insurance contract, the Company cannot predict with certainty whether the ultimate liability associated with these open claims will exceed the limits of the insurance contract. Accordingly, future changes in estimated amounts of the ultimate liability with respect to these claims could have a material adverse effect on the Company's financial condition or results of operations. See Note 1 of Notes to Consolidated Financial Statements. QUARTERLY FLUCTUATIONS IN EARNINGS AND IMPACT OF EMPLOYMENT RELATED TAXES The Company's operating results have historically fluctuated from quarter to quarter. In addition, due to the timing of the assessment of employment related taxes, the Company's gross profit margin typically improves from quarter to quarter within each year with the first quarter generally the least favorable. Employment related taxes are based on the cumulative earnings of individual employees up to specified wage levels. Since the Company's revenues related to worksite employees are earned and collected at a relatively constant rate throughout each year, payment of such unemployment tax obligations has a substantial impact on the Company's financial condition and results of operations during the first six months of each year. POTENTIAL CLIENT LIABILITY FOR EMPLOYMENT TAXES Pursuant to the Company's Client Service Agreement with its clients, the Company assumes sole responsibility and liability for the payment of federal employment taxes imposed under the Code with respect to wages and salaries paid to its worksite employees. There are essentially three types of federal employment tax obligations: (i) income tax withholding requirements; (ii) obligations under the Federal Income Contribution Act ("FICA"); and (iii) obligations under the Federal Unemployment Tax Act ("FUTA"). Under the Code, employers have the obligation to withhold and remit the employer portion and, where applicable, the employee portion of these taxes. Most states impose similar employment tax obligations on the employer. While the Client Service Agreement provides that the Company has sole legal responsibility for making these tax contributions, the IRS or applicable state taxing authority could conclude that such liability cannot be completely transferred to the Company. Accordingly, in the event the Company fails to meet its tax withholding and payment obligations, the client company may be held jointly and severally liable therefor. While this interpretive issue has not, to the Company's knowledge, discouraged clients from enrolling with the Company, there can be no assurance that a definitive adverse resolution of this issue would not do so in the future. DEPENDENCE ON KEY PERSONNEL The Company's success is dependent upon the continued contributions of its key management personnel, some of whom were founders of the Company. Many of the Company's key personnel would be difficult to replace. The Company's executives are not subject to noncompetition agreements. EXPENSES ASSOCIATED WITH EXPANSION Past and future operating results are impacted by the Company's market expansion activities, including establishing and maintaining sales office facilities, compensating newly hired sales associates and expanding advertising efforts. The Company's operating results for 1993, 1994 and 1995 have included $0.2 million, $1.0 million and $4.3 million, respectively, of operating expenses incurred in new markets. For the nine months ended September 30, 1996, these costs have totaled $4.5 million. The Company expects that investments in new markets will continue at levels comparable to or greater than 1995 and 1996 through at least 1998, and that expenses in a new market will not be covered by the gross profit from that market's revenues for approximately two years. While the Company believes that its expansion program will ultimately lead to increased profitability, there can be no assurance that losses or diminished profitability will not be incurred in future periods as a result of the Company's planned expansion or that such losses or diminished profitability will not have a material adverse effect on the Company's results of operations or financial condition. 14 17 FAILURE TO MANAGE GROWTH The Company has experienced significant growth and expects such growth to continue for the foreseeable future. The Company plans to enter at least one new market or open at least one additional sales office in an existing market in each quarter of 1997 and 1998. As described under the caption "-- Expenses Associated with Expansion," expenses incurred in connection with the initial expansion into new markets are significant. In addition, because each market entry is affected by circumstances unique to its particular locale, there are uncertainties associated with each new market entry. Accordingly, the Company's expansion plan may place a significant strain on the Company's management, financial, operating and technical resources. Failure to manage this growth effectively could have a material adverse effect on the Company's financial condition or results of operations. NEED TO RENEW OR REPLACE CLIENT COMPANIES The Company's standard Client Service Agreement has an initial one-year term and is subject to cancellation on 30 days' notice by either the Company or the client. Accordingly, the short-term nature of the Client Service Agreement makes the Company vulnerable to potential cancellations by existing clients which could materially and adversely affect the Company's financial condition and results of operations. In addition, the Company's results of operations are dependent in part upon the Company's ability to retain or replace its client companies upon the termination or cancellation of the Client Service Agreement. Historically, between 15% and 20% of the Company's clients have remained clients for less than one year and there can be no assurance that the number of contract cancellations will not increase in the future. ANTI-TAKEOVER EFFECTS OF CERTAIN CHARTER AND BYLAW PROVISIONS AND DELAWARE LAW The Company's Certificate of Incorporation and Bylaws include provisions that may have the effect of discouraging proposals by third parties to acquire a controlling interest in the Company, which could deprive stockholders of the opportunity to consider an offer that would be beneficial to them. These provisions include (i) a classified Board of Directors, (ii) the ability of the Board of Directors to establish a rights plan, establish a sinking fund for the purchase or redemption of shares, fix the number of directors and fill vacancies on the Board of Directors, and (iii) restrictions on the ability of stockholders to call special meetings, act by written consent or amend the foregoing provisions. In addition, under certain conditions Section 203 of the General Corporation Law of the State of Delaware (the "DGCL") would impose a three-year moratorium on certain business combinations between the Company and an "interested stockholder" (in general, a stockholder owning 15 percent or more of a corporation's outstanding voting stock). The existence of such provisions may have a depressive effect on the market price of the Common Stock in certain situations. See "Description of Capital Stock -- Provisions Having Possible Anti-takeover Effect." CONTROL BY EXISTING STOCKHOLDERS Immediately following this offering and the application of the proceeds therefrom, the Company's officers, directors and principal stockholders will beneficially own an aggregate of 9,661,551 shares of Common Stock of the Company, constituting approximately 69.4% of the outstanding shares of Common Stock (or such persons will beneficially own 9,251,380 shares, representing approximately 66.6% of the outstanding shares, if the Underwriters' over-allotment option is exercised in full). Accordingly, such persons will be in a position to control actions that require the consent of a majority of the Company's outstanding voting stock, including the election of directors. A person beneficially owning more than one-fifth of the Company's outstanding voting stock will be able to prevent certain actions that require the affirmative vote of at least four-fifths of the Company's outstanding voting stock. See "Principal and Selling Stockholders." BROAD DISCRETION OVER USE OF PROCEEDS Approximately $19.2 million, or 51.5%, of the estimated net proceeds from the sale of the Common Stock offered hereby has been allocated to implement the Company's expansion plan, to repay certain indebtedness and to repurchase Common Stock and Common Stock warrants held by one of the Company's existing 15 18 stockholders. The balance of the net proceeds (estimated to be approximately $18.1 million) will be used for working capital purposes, which may include acquisitions of existing PEO operations should favorable opportunities arise. Accordingly, the Company will have broad discretion to allocate a significant portion of the net proceeds from this offering without any action or approval of the Company's stockholders. Therefore, investors in the Common Stock will not have the opportunity to evaluate the economic, financial and other relevant information that will be considered by the Company in determining the application of such net proceeds. See "Use of Proceeds." ABSENCE OF PRIOR TRADING MARKET; POTENTIAL VOLATILITY OF STOCK PRICE Prior to this offering, there has been no public market for the Common Stock. Although the Common Stock has been approved for listing on the NYSE, there can be no assurance that an active trading market will develop for the Common Stock or, if one does develop, that it will be maintained. The public offering price of the Common Stock will be negotiated between the Company and the representatives of the underwriters. See "Underwriters" for information relating to the factors considered in determining the initial public offering price. The market price of the shares of Common Stock could be highly volatile, fluctuating in response to factors such as variations in the Company's operating results, announcements of new services or market expansions by the Company or its competitors, or developments relating to regulatory or other issues affecting the PEO industry. SHARES ELIGIBLE FOR FUTURE SALE Sales of substantial amounts of the Common Stock in the public market following this offering could have an adverse effect on prevailing market prices of the Common Stock. All of the shares of the Company's currently outstanding Common Stock are eligible for sale pursuant to the exemption from registration pursuant to Rule 144 under the Securities Act ("Rule 144"), subject to applicable holding periods, volume and other limitations. In addition, after giving effect to the use of proceeds described herein, certain holders of Common Stock will have registration rights for an aggregate of up to 2,464,082 shares of Common Stock. However, the officers, directors and certain other stockholders of the Company have agreed with the underwriters not to sell any of their shares for a period of 180 days from the date of this Prospectus without the prior written consent of the representatives of the underwriters. Such stockholders will beneficially own an aggregate of approximately 9,507,506 shares of Common Stock upon the completion of this offering and after giving effect to the use of proceeds described herein. Immediately after completion of this offering and the application of the proceeds as described in "Use of Proceeds", a total of 3,000,000 shares of Common Stock (3,450,000 shares if the Underwriters' over-allotment option is exercised in full) will be eligible for resale in the public market without restriction. In addition, 90 days after the date of this Prospectus approximately 869,823 of the currently outstanding shares of Common Stock will be eligible for resale in accordance with Rule 144, and 180 days after the date of this Prospectus an additional 9,507,506 of the currently outstanding shares of Common Stock will be eligible for resale in accordance with Rule 144. See "Shares Eligible for Future Sale." DILUTION Purchasers of the Common Stock offered hereby will experience immediate and significant dilution (approximately $10.63 per share assuming an initial public offering price of $14.00 per share of Common Stock) in the net tangible book value of their shares. See "Dilution." NO DIVIDENDS The Company intends to retain all of its earnings to finance the expansion of its business and for general corporate purposes and does not anticipate paying any cash dividends on its Common Stock for the foreseeable future. In addition, the Company's credit facility includes certain restrictions on the ability of the Company to pay dividends. See "Dividend Policy" and "Management's Discussion and Analysis of Financial Condition and Results of Operations -- Liquidity and Capital Resources." 16 19 THE COMPANY The Company was originally organized in 1986 as a Texas corporation. Prior to the consummation of this offering, the Company reorganized into Delaware by completing a merger with a subsidiary of a Delaware corporation established by the Company for this purpose. In conjunction with such merger, each of the Company's stockholders exchanged their shares in the Texas corporation for Common Stock of the Company on the basis of two shares of Common Stock for every three shares of common stock of the Texas corporation. The Company's resulting structure is that of a Delaware holding company whose only asset is the capital stock of its operating subsidiary. All information in this Prospectus gives effect to this reorganization. The Company's corporate headquarters are located at 19001 Crescent Springs Drive, Kingwood, Texas 77339-3802, and its telephone number is (281) 358-8986. USE OF PROCEEDS The net proceeds to the Company from the sale of the 3,000,000 shares of Common Stock being offered by the Company hereby (assuming an offering price of $14.00 per share, the midpoint of the price range set forth on the cover of this Prospectus, and after deducting estimated underwriting discounts and commissions and estimated expenses of $1.75 million) are estimated to be $37.3 million. Of these proceeds, the Company currently expects to allocate approximately $12.0 million to support expansion of the Company's operations, including the opening of sales offices in new geographic markets as well as in established markets and, as favorable opportunities arise, expansion of the Company's client base in new or existing markets through an acquisition of an existing PEO office. The Company believes that this allocation will be sufficient to fund the Company's expansion plans through 1997 and 1998. In addition, the Company intends to utilize approximately $7.2 million of such proceeds as follows: (i) $4.0 million to repay all of its 13% Subordinated Notes (the "Notes") held by the Board of Trustees of the Texas Growth Fund, as Trustee for the Texas Growth Fund-1991 Trust ("TGF"), (ii) approximately $2.5 million to exercise its option to repurchase 348,945 shares of Common Stock from Pyramid Ventures, Inc. ("PVI") and its option to repurchase 173,609 warrants to purchase shares of Common Stock from TGF, and (iii) approximately $0.7 million to retire the current balances of certain secured loans (the "Secured Loans") incurred in connection with the purchase of real estate for the Company's headquarters. The balance of the proceeds (estimated to be approximately $18.1 million), will be used for working capital purposes, which may include acquisitions of existing PEO operations should favorable acquisition opportunities arise. The Company does not have any agreement, arrangement or understanding regarding acquisitions of existing PEO operations or any amounts budgeted for such acquisitions, and any funds expended on such acquisitions would be in addition to funds expended in conjunction with the Company's expansion plans. Pending the application of such funds, the Company intends to invest the net proceeds of this offering in diversified, highly-liquid, investment grade, interest-bearing instruments. The Notes, which are to be redeemed pursuant to optional prepayment provisions, mature in May 1999 and accrue interest at an annual rate of 13% payable quarterly. The Secured Loans consist of three separate notes ranging from $73,000 to $462,000 in outstanding principal amount, with payments aggregating from approximately $11,000 to $84,000 annually, and with interest rates ranging from approximately 8.4% to 9.5% as of September 30, 1996. See Note 3 of Notes to Consolidated Financial Statements (unaudited) for the Interim Period Ended September 30, 1996. In the event that the Underwriters' over-allotment option is exercised, the Company will not receive any proceeds from the sale of shares of Common Stock by the Selling Stockholders. 17 20 DIVIDEND POLICY The Company has not paid cash dividends on its Common Stock since its formation and does not anticipate declaring or paying dividends on its Common Stock in the foreseeable future. The Company expects that it will retain all available earnings generated by the Company's operations for the development and growth of its business. Any future determination as to the payment of dividends will be made at the discretion of the Board of Directors of the Company and will depend upon the Company's operating results, financial condition, capital requirements, general business conditions and such other factors as the Board of Directors deems relevant. In addition, the Company's $10 million revolving credit agreement prohibits the payment of dividends or other distributions on the Common Stock, except that, so long as no default exists thereunder and, after giving effect to such dividend or distribution, will exist thereunder, the Company may pay dividends on its Common Stock. See "Management's Discussion and Analysis of Financial Condition and Results of Operations -- Liquidity and Capital Resources." CAPITALIZATION The following table sets forth the capitalization of the Company as of September 30, 1996, and the capitalization as of such date as adjusted to give effect to (i) the sale of the 3,000,000 shares of Common Stock offered by the Company hereby (assuming an offering price of $14.00 per share) and (ii) the application of the net proceeds therefrom as described in "Use of Proceeds." This table should be read in conjunction with the Consolidated Financial Statements of the Company and the Notes thereto included elsewhere in this Prospectus.
AS OF SEPTEMBER 30, 1996 --------------------- AS ACTUAL ADJUSTED -------- -------- (IN THOUSANDS) Total debt(1)......................................................... $ 4,648 $ -- Stockholders' equity: Preferred stock, par value $0.01 per share Shares authorized -- 20,000,000 Shares issued and outstanding -- none............................ -- -- Common stock, par value $0.01 per share Shares authorized -- 60,000,000 Shares issued and outstanding -- 10,726,274 and 13,377,329, respectively(2)................................................. 107 137 Additional paid-in capital(3)....................................... 5,706 42,449 Retained earnings................................................... 5,490 5,490 Less treasury stock, at cost (348,945 shares of common stock, as adjusted)........................................................ -- (2,000) -------- -------- Total stockholders' equity....................................... 11,303 46,076 -------- -------- Total capitalization.................................................. $ 15,951 $ 46,076 ======== ========
- --------------- (1) Includes current maturities of $74,000. See "Management's Discussion and Analysis of Financial Condition and Results of Operations -- Liquidity and Capital Resources" and Note 3 of Notes to Consolidated Financial Statements for information regarding the Company's long term debt. (2) The number of shares to be outstanding after the offering gives effect to the repurchase of Common Stock and Common Stock warrants as described under "Use of Proceeds," and excludes the 1,027,613 shares of Common Stock issuable upon the exercise of options and warrants which will remain outstanding after consummation of the offering. (3) Additional paid-in capital, as adjusted, includes a reduction of $0.5 million to reflect the repurchase of 173,609 Common Stock warrants from TGF. 18 21 DILUTION The net tangible book value of the Company's Common Stock as of September 30, 1996 was $10.3 million, or $0.96 per share. Net tangible book value per share represents the amount of total tangible assets less total liabilities, divided by the number of shares of Common Stock outstanding. After giving effect to the sale of shares of Common Stock offered by the Company hereby at an assumed initial public offering price of $14.00 per share and receipt of the estimated net proceeds therefrom, the net tangible book value of the Company as of September 30, 1996 would have been $45.0 million, or $3.37 per share, representing an immediate increase in net tangible book value of $2.41 per share to existing stockholders and an immediate dilution of $10.63 per share to new investors purchasing shares at the assumed initial public offering price. The following table illustrates the resulting per share dilution with respect to the shares of Common Stock offered hereby: Assumed initial public offering price per share.................. $14.00 Net tangible book value per share before offering.............. $0.96 Increase per share attributable to new investors............... 2.41 ----- Net tangible book value per share after offering................. 3.37 ------ Dilution per share to new investors.............................. $10.63 ======
The following table summarizes the differences, on a pro forma basis as of September 30, 1996, between the existing stockholders and the new investors with respect to the number of shares purchased from the Company, the total consideration paid and the average price per share paid (based upon an assumed initial public offering price of $14.00 per share for new investors):
AVERAGE SHARES PURCHASED TOTAL CONSIDERATION PRICE --------------------- ---------------------- PER NUMBER PERCENT AMOUNT PERCENT SHARE ---------- ------- ----------- ------- ------- Existing stockholders............... 10,377,329 78% $ 5,663,000 12% $ 0.55 New investors....................... 3,000,000 22% 42,000,000 88% 14.00 ---------- ---- ----------- ---- ------- Total..................... 13,377,329 100% $47,663,000 100% $ 3.56 ========== ==== =========== ==== =======
The tables assume no exercise of any outstanding options or warrants to purchase Common Stock. To the extent such options or warrants are exercised, there will be further dilution to new investors. 19 22 SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA The following selected historical consolidated financial data should be read in conjunction with the Consolidated Financial Statements, including the Notes thereto, and "Management's Discussion and Analysis of Financial Condition and Results of Operations." The statement of operations data set forth below with respect to the years ended December 31, 1993, 1994 and 1995 and the balance sheet data as of December 31, 1994 and 1995 are derived from, and are qualified by reference to, the audited consolidated financial statements included elsewhere in this Prospectus. The statement of operations data for the years ended December 31, 1991 and 1992 and the balance sheet data as of December 31, 1991, 1992 and 1993 are derived from audited consolidated financial statements not included herein. The statement of operations data for the nine months ended September 30, 1995 and 1996 and the balance sheet data as of September 30, 1996 are unaudited. The unaudited results of operations for the nine months ended September 30, 1996 are not necessarily indicative of results expected for the full year. (See "Management's Discussion and Analysis of Financial Condition and Results of Operation -- Nine Months Ended September 30, 1996 Compared to Nine Months Ended September 30, 1995.")
NINE MONTHS ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31, (UNAUDITED) -------------------------------------------------------- -------------------- 1991 1992 1993 1994 1995 1995 1996 -------- -------- -------- -------- -------- -------- -------- (IN THOUSANDS, EXCEPT FOR PER SHARE AND STATISTICAL DATA) STATEMENT OF OPERATIONS DATA: Revenues(1).............................. $300,051 $409,046 $496,058 $564,459 $716,210 $505,619 $635,252 Direct costs(1): Salaries and wages of worksite employees............................ 241,471 328,223 397,662 453,750 582,893 408,379 517,820 Benefits and payroll taxes............. 49,542 67,272 78,614 85,513 104,444 76,964 91,307 -------- -------- -------- -------- -------- -------- -------- Gross profit............................. 9,038 13,551 19,782 25,196 28,873 20,276 26,125 Operating expenses: Salaries, wages and payroll taxes...... 3,090 5,077 6,136 8,094 10,951 8,055 10,475 General and administrative expenses.... 3,008 4,788 5,571 5,648 7,597 5,497 5,937 Commissions............................ 1,787 2,569 2,975 3,231 3,942 2,908 2,939 Advertising............................ 849 888 1,612 1,797 3,268 2,125 2,488 Depreciation and amortization.......... 260 282 361 567 894 627 1,063 -------- -------- -------- -------- -------- -------- -------- Total operating expenses............... 8,994 13,604 16,655 19,337 26,652 19,212 22,902 -------- -------- -------- -------- -------- -------- -------- Operating income (loss)(2)............... $ 44 $ (53) $ 3,127 $ 5,859 $ 2,221 $ 1,064 $ 3,223 Net income(2)............................ $ 70 $ 33 $ 1,949 $ 3,766 $ 1,116 $ 617 $ 614(3) Net income per share(4).................. $ 0.01 $ 0.00 $ 0.22 $ 0.37 $ 0.10 $ 0.06 $ 0.06(3) Weighted average shares outstanding(4)... 6,439 8,591 8,848 10,347 10,817 10,767 10,873 Supplemental net income per share(5)..... $ 0.16 $ 0.10 STATISTICAL DATA: Worksite employees at period end(6)...... 11,380 13,490 15,165 15,780 20,502 20,124 22,993 Client companies at period end........... 501 598 687 809 1,130 1,085 1,441 Gross payroll per employee per month(7)............................... $ 1,823 $ 1,919 $ 2,117 $ 2,268 $ 2,331 $ 2,297 $ 2,522
YEAR ENDED DECEMBER 31, SEPTEMBER 30, -------------------------------------------------------- 1996 1991 1992 1993 1994 1995 (UNAUDITED) -------- -------- -------- -------- -------- ------------- (IN THOUSANDS) CONSOLIDATED BALANCE SHEET: Working capital................................ $ (4,049) $ (2,431) $ (2,340) $ 8,797 $ 4,737 $ 3,303 Total assets................................... 18,096 19,929 19,401 41,081 39,474 45,134 Total debt..................................... 5,077 1,502 1,196 5,007 4,679 4,648 Total stockholders' equity (deficit)........... (1,834) (1,371) 569 8,056 10,689 11,303
- --------------- (1) Revenues consist of service fees paid by the Company's clients under its Client Service Agreements. In consideration for payment of such service fees, the Company agrees to pay the following direct costs associated with the worksite employees: (i) salaries and wages, (ii) employment related taxes, (iii) employee benefit plan premiums, (iv) workers' compensation insurance premiums and (v) administrative costs and related expenses. 20 23 (2) Operating income (loss) and net income include the effects of expenses associated with the Company's expansion plan which began in 1993. See "Management's Discussion and Analysis of Financial Condition and Results of Operations." (3) For the nine months ended September 30, 1996, net income and net income per share were $1,791,000 and $0.16, respectively, excluding the impact of a non-recurring charge relating to certain issues involving the failure of the Company's 401(k) Plan to comply with certain nondiscrimination tests required by the Code, which impact has been adjusted for income taxes and is net of amounts recoverable from the 401(k) Plan record keeper. See "Risk Factors -- Costs of 401(k) Plan Compliance," "Industry Regulation -- Employee Benefit Plans" and Note 4 of Notes to Consolidated Financial Statements (unaudited) for the nine months ended September 30, 1996. (4) Computed as described in Note 1 of Notes to Consolidated Financial Statements. (5) Computed as described in Note 11 of Notes to Consolidated Financial Statements. (6) Reflects the number of employees paid during the last month of the period shown. (7) Excludes bonus payroll of worksite employees, which is not subject to the Company's normal service fee. 21 24 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The following discussion should be read in conjunction with, and is qualified in its entirety by, the Company's Consolidated Financial Statements and Notes thereto included elsewhere in this Prospectus. Historical results are not necessarily indicative of trends in operating results for any future period. OVERVIEW Administaff provides a comprehensive personnel management system encompassing a broad range of services, including personnel management, benefits and payroll administration, medical and workers' compensation insurance programs, tax filings, personnel records management, liability management and related human resource service. The Company has current operations in 10 markets, including Houston, San Antonio, Austin, Orlando, Dallas, Atlanta, Phoenix, Chicago, Baltimore/Washington, D.C. and Denver. Prior to October 1993, the Company's revenues were primarily the result of sales and marketing activity in the Houston market. In October 1993 the Company opened a sales office in Dallas as the first step in implementing a long-term internal growth and expansion strategy. Subsequent to obtaining expansion capital in May 1994, sales offices were opened in Atlanta and Phoenix in accordance with Administaff's market expansion plan. In the first half of 1995, the Company established a presence in Chicago both by entering into a referral agreement with an unaffiliated PEO organization and by opening a sales office. The Company completed the scheduled opening of its Baltimore/Washington, D.C. office in October 1995, opened a second office in Dallas in January 1996, and a new office in Denver in September 1996. The costs associated with this expansion into new markets (which for the purposes hereof refers to Dallas and subsequently opened markets) have been significant and have affected the results of operations for 1994, 1995 and the first nine months of 1996. REVENUES Administaff's clients enter into a Client Service Agreement which establishes a three-party relationship among the Company, the client and the worksite employees. The agreement provides for an initial one year term, subject to cancellation on 30 days' notice by either the Company or the client, and sets forth the service fee payable to the Company. Such service fee, which constitutes the Company's revenues, is based on the gross payroll of each employee plus the estimated costs of employment related taxes, providing human resource services, performing administrative functions, providing insurance coverages and benefit plans and performing other services offered by the Company. This structure yields a comprehensive service fee percentage to be applied to each employee's gross pay. These fees are invoiced along with each periodic payroll. Pursuant to the Client Service Agreement, the Company has the obligation to provide the benefits and services enumerated in that agreement as well as to pay the direct costs associated with such services, regardless of whether the client company makes timely payment to the Company of the associated service fee. The most significant direct costs associated with each Client Service Agreement are the salaries and wages of worksite employees which generally are disbursed promptly after the applicable client service fee is received. For a description of additional direct costs, see "-- Direct Costs" below. The Company's revenues are dependent on the number of clients enrolled, the resulting number of employees paid each period, the gross payroll of such employees and the number of employees enrolled in benefit plans. The Company's expansion program is designed to broaden the scope of the Company's sales and marketing efforts into new, strategically selected markets, where the Company's objective is to duplicate the sales and marketing success experienced in the Houston market to date. The Company has expanded its sales force from 22 at December 31, 1993 to 80 at September 30, 1996. In addition to the Denver office opened in September 1996, the Company expects to open at least one new market or one additional sales office in existing markets in each quarter during 1997 and 1998. The Company further expects that each new sales office will have a staff of six to ten sales associates. 22 25 DIRECT COSTS The Company's primary direct costs are (i) the salaries and wages of worksite employees (payroll cost), (ii) employment related taxes, (iii) employee benefit plan premiums and (iv) workers' compensation insurance premiums. Salaries and wages of worksite employees are affected by the inflationary effects on wage levels and by differences in the local economies of the Company's markets. Changes in payroll costs have a proportionate impact on the Company's revenues. Employment related taxes consist of the employer's portion of payroll taxes required under FICA, which includes Social Security and Medicare, and federal and state unemployment taxes. The federal tax rates are defined by the appropriate federal regulations. State unemployment rates are subject to claims histories and vary from state to state. Employee benefit costs are comprised primarily of medical insurance costs but also include costs of other employee benefits such as prescription card, vision care, disability insurance and an employee assistance plan. Workers' compensation costs include premiums, administrative costs and claims related expenses under the Company's workers' compensation program. Currently, the Company is insured under a guaranteed cost plan whereby monthly premiums are paid for coverage of all accident claims occurring during the policy period. Prior to November 1994, the Company had been insured under two other types of workers' compensation policies: a retrospective rating plan, whereby monthly premiums were paid to the insurance carrier based on estimated actual losses plus an administrative fee and a high deductible paid loss plan, whereby monthly premiums were paid based on a $500,000 deductible per occurrence. Costs related to these prior plans include estimates of ultimate claims amounts that are recorded as accrued workers' compensation claims. Changes in these estimates are reflected as a component of direct costs in the period of the change. The Company's gross profit margin is determined in part by its ability to accurately estimate and control direct costs and its ability to incorporate such costs into the service fees charged to clients. The Company attempts to reflect changes in the primary direct costs through adjustments in service fees charged to clients, subject to contractual arrangements. OPERATING EXPENSES The Company's primary operating expenses are salaries, wages and payroll taxes of both corporate employees and sales associates, general and administrative expenses and sales and marketing expenses. Prior to October 1993, all of the Company's operating expenses were incurred through its corporate offices in Houston. As a result of the Company's market expansion program, however, operating expenses have increased significantly. The increases include expenses associated with establishing and maintaining each new sales office facility, the increased compensation related expenses of newly hired sales associates and expansion of the Company's advertising efforts. In addition, the anticipated growth as a result of the sales expansion is also reflected in increased corporate operating expenses to provide expansion of the Company's service capacity. The Company expects that the investment in new markets will continue at a level comparable to or greater than 1995 and 1996 through at least 1998. INCOME TAXES The Company's provision for income taxes typically differs from the U.S. statutory rate of 34% due primarily to state income taxes. Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities used for financial reporting purposes and the amounts used for income tax purposes. Significant items resulting in deferred income taxes include accrued workers' compensation claims, depreciation and amortization, state income taxes, client list acquisition costs, allowance for uncollectible accounts receivable, net operating loss carryforwards and other accrued liabilities. Changes in these items are reflected in the Company's financial statements though the Company's deferred income tax provision. 23 26 QUARTERLY OPERATING RESULTS The Company's revenues have generally increased on a quarter-to-quarter basis. Revenues in the fourth quarter of each year include the effects of bonus payrolls of worksite employees, which are substantially higher in December of each year. Gross profit margin typically improves from quarter to quarter within a year, with the first quarter generally the least favorable. Employment related taxes are based on the cumulative earnings of individual employees up to a specified wage level. Therefore, these expenses tend to decline over the course of the year. Since the Company's revenues related to an individual employee are earned and collected at a relatively constant rate throughout each year, payment of such unemployment tax obligations has a substantial impact on the Company's working capital and results of operations during the first six months of each year. Other factors affecting the primary components of direct cost have enhanced or mitigated this tendency. Examples of these factors include the effects of trends in medical and workers' compensation claims, adjustments to benefit premiums and changes in the types of benefit plans and workers' compensation programs. In addition, beginning in October 1993, operating income and net income have been affected by expenses incurred to open new markets and to increase sales and service capacity and, in the third quarter of 1996, net income was affected by a non-recurring charge relating to certain issues involving the failure of the Company's 401(k) Plan to comply with certain nondiscrimination tests required by the Code. See "Risk Factors -- Costs of 401(k) Plan Compliance," "Industry Regulation -- Employee Benefit Plans" and Note 4 of Notes to Consolidated Financial Statements (unaudited) for the interim period ended September 30, 1996. The following table presents certain unaudited results of operations data for the interim quarterly periods from 1994 through the third quarter of 1996. The Company believes that all adjustments, consisting only of normal recurring adjustments, necessary to present fairly the results of operations in accordance with generally accepted accounting principles, have been made. The results of operations for any interim period are not necessarily indicative of the operating results for a full year or any future period.
QUARTER ENDED ---------------------------------------------------------------------------------------------------------------------- 1994 1995 1996 ----------------------------------------- ----------------------------------------- ------------------------------ MAR. 31 JUNE 30 SEPT. 30 DEC. 31 MAR. 31 JUNE 30 SEPT. 30 DEC. 31 MAR. 31 JUNE 30 SEPT. 30 -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- -------- (OPERATING RESULTS IN THOUSANDS) Revenues... $128,875 $135,660 $141,929 $157,995 $158,223 $167,064 $180,332 $210,591 $194,336 $209,726 $231,190 Gross profit... 2,934 7,511 7,602 7,149 4,761 6,704 8,811 8,597 6,189 8,651 11,285 Gross profit margin... 2.3% 5.5% 5.4% 4.5% 3.0% 4.0% 4.9% 4.1% 3.2% 4.1% 4.9% Operating income (loss)... (1,094) 3,070 2,744 1,139 (1,675) 67 2,672 1,157 (1,302) 1,049 3,476 Net income (loss)... (631) 1,887 1,738 772 (1,149) 47 1,718 500 (909) 552 971
RESULTS OF OPERATIONS NINE MONTHS ENDED SEPTEMBER 30, 1996 COMPARED TO NINE MONTHS ENDED SEPTEMBER 30, 1995. The following table presents certain information related to the Company's results of operations for the interim periods ended September 30, 1996 and 1995.
NINE MONTHS ENDED SEPTEMBER 30, ---------------------- 1995 1996 CHANGE --------- -------- ------ (OPERATING RESULTS IN THOUSANDS) OPERATING RESULTS: Revenues.................................................. $ 505,619 $635,252 25.6% Gross profit.............................................. 20,276 26,125 28.9% Gross profit margin....................................... 4.0% 4.1% Operating income.......................................... 1,064 3,223 202.9% STATISTICAL DATA: Monthly revenue per worksite employee..................... $ 2,867 $ 3,117 8.7% Monthly payroll cost per worksite employee................ 2,297 2,522 9.8% Monthly gross markup per worksite employee................ 569 596 4.7% Average number of worksite employees paid per month during period................................................. 18,849 21,721 15.2%
24 27 Revenues The Company's revenues increased 25.6% over the comparable nine month period in 1995 due to an increased number of worksite employees paid during the period and an increase in the revenue per employee. The Company's continued expansion of its sales force through new market and sales office openings is the primary factor contributing to the increased number of worksite employees. The Company's new markets contributed $150.7 million of the Company's total revenues for the first nine months of 1996 versus $72.3 million for the same period in 1995. In addition, the 1995 period includes approximately 1,400 new employees enrolled through a referral agreement with an unaffiliated PEO in Chicago. The Company added to its sales force in the Dallas market in January 1996 and the Denver market in September 1996 and expects continued growth in the number of worksite employees throughout the remainder of 1996 due to the continued effect of sales in existing markets and expansion into new markets. The increase in revenue per employee of 8.7% directly relates to increases in payroll cost per employee of 9.8%. This increase reflects the continuing effects of the net addition, through the Company's sales efforts, of worksite employees with higher average base pay than the existing client base. Gross Profit Margin The Company's gross profit margin increased from 4.0% for the first nine months of 1995 to 4.1% for the first nine months of 1996. The primary factors contributing to the increased gross profit margin were a decrease in unemployment taxes relative to payroll cost and a slight decrease in the cost of providing employee benefits as a percent of revenue. These factors were partially offset by a decrease in the gross markup per person as a percent of revenue. Employment related taxes as a percent of payroll cost declined from 8.5% in the first nine months of 1995 to 7.6% for the same period in 1996. This reduction was primarily due to reduced unemployment tax expense in the State of Texas. The Company's unemployment tax rate in the State of Texas was substantially lower in 1996 than 1995 due to the effects of a reorganization of the Company's operating subsidiaries completed on January 1, 1996. The cost of providing employee benefits was slightly lower in 1996 versus the same period in 1995 primarily due to decreased workers' compensation costs. Workers' compensation costs decreased from 2.5% of payroll cost during the first nine months of 1995 to 2.0% of payroll cost in the same period in 1996. This reduction was due to the overall rate on the Company's fixed premium policy in effect during 1996 being lower than the previous policy. The Company has recently renewed its workers' compensation policy at a slightly lower rate, and such policy is in effect through October 31, 1997. These rate reductions reflect a reduced risk sensitivity of the current composition of the Company's client base. In addition, the 1995 period included adjustments to accrued workers' compensation claims relating to high deductible paid loss policies in place prior to November 1994, which adjustments were not present in the 1996 period. Medical plan premiums increased only slightly as a percent of revenues from 6.0% in the first nine months of 1995 to 6.1% in the 1996 period. The markup per employee, while increasing 4.7%, decreased as a percent of revenue from 19.8% in the 1995 period to 19.1% in the 1996 period. This reduction was primarily due to the continued addition of higher wage, less risk sensitive employees on which the Company charges lower overall rates as a percentage of gross payroll. Operating Expenses Operating expenses decreased slightly as a percent of revenue from 3.8% in the first nine months of 1995 to 3.6% for the comparable period in 1996. Total operating expenses increased 19.2% while revenues and gross profit increased 25.6% and 28.9%, respectively. The overall increase in operating expenses can be attributed to the following factors: (1) increased compensation related costs (salaries, wages and payroll taxes and commissions) which increased in proportion to revenues; (2) increased advertising expenses; and (3) increased depreciation and amortization expense. General and administrative expenses were slightly higher than 25 28 the 1995 period. The factors noted above include the effects of continued significant operating expenses in new markets. These costs totaled $4.5 million for the nine months ended September 30, 1996 versus $2.8 million for the comparable period in 1995. Excluding the impact of expenses incurred in the new markets, operating expenses as a whole increased only $1.9 million, or 10.0% as compared to the same 1995 period. Total compensation costs, which include salaries, wages, payroll taxes and commissions, increased 22.4% compared to the same period in 1995. Salaries and wages increased at a higher rate while commissions were relatively unchanged due to a restructuring of the Company's sales compensation plan to a more salary based system. Overall, corporate staff, including sales personnel, increased 13.9% versus the same period in 1995. This increase is primarily due to increased sales personnel and continued increases in corporate service capacity during the second half of 1995. Since December 31, 1995, the corporate staff level has remained relatively constant and is expected to increase only slightly through the end of 1996. Advertising expenses increased by 17.1% primarily due to planned increases relative to overall growth and expansion into new markets. Depreciation and amortization expense increased 69.5% over the same 1995 period. The Company placed into service a new corporate facility in February 1996 which has resulted in higher depreciation and amortization expense for the nine month period as compared to 1995. In addition, capital expenditures incurred during the previous 12 months related to the opening of new sales offices as part of the Company's market expansion process and increases in corporate service capacity contributed to the increase. General and administrative expenses as a percent of revenue declined slightly versus the comparable 1995 period from 1.1% to 0.9%. This trend is due to the Company's focused efforts to contain costs in its selling, service and administrative functions. Net Income Interest expense increased $233,000 due to financing charges related to the payment plan for the Company's annual workers' compensation insurance policy and short-term borrowings on the Company's revolving line of credit. Interest income decreased $38,000 versus the first nine months of 1995 due to lower level of funds available to invest during the period. Other net includes a non-recurring charge relating to certain issues involving the failure of the Company's 401(k) Plan to comply with certain nondiscrimination tests required by the Code, which charge is net of amounts recoverable from the 401(k) Plan record keeper. See "Risk Factors -- Costs of 401(k) Plan Compliance," "Industry Regulation -- Employee Benefit Plans" and Note 4 of Notes to Consolidated Financial Statements (unaudited) for the nine months ended September 30, 1996. The Company's provision for income taxes, which includes the effects of the non-recurring charge for 401(k) Plan issues, differs from the U.S. statutory rate of 34% due primarily to certain portions of the non-recurring charge being non-deductible for income tax purposes. In addition, the Company's provision for income taxes differs from the U.S. statutory rate due to state income taxes. Net income for the first nine months was $0.6 million. Excluding the non-recurring charge and the related income tax effects of such charge, net income would have been $1.8 million versus $0.6 million for the same period in 1995. The increased net income, excluding the non-recurring charge, as compared with the 1995 period is attributable to the increased gross profit resulting from the Company's overall revenue growth combined with slower growth in overall operating expenses as discussed above. 26 29 YEAR ENDED DECEMBER 31, 1995 COMPARED TO YEAR ENDED DECEMBER 31, 1994 The following table represents certain information related to the Company's results of operations for the years ended December 31, 1994 and 1995.
YEAR ENDED DECEMBER 31, ----------------------- 1994 1995 CHANGE -------- -------- ------ (OPERATING RESULTS IN THOUSANDS) OPERATING RESULTS: Revenues............................................... $564,459 $716,210 26.9% Gross profit........................................... 25,196 28,873 14.6% Gross profit margin.................................... 4.5% 4.0% Operating income....................................... 5,859 2,221 (62.1)% STATISTICAL DATA: Monthly revenue per worksite employee.................. $ 2,860 $ 2,904 1.5% Monthly payroll cost per worksite employee............. 2,268 2,331 2.8% Monthly gross markup per worksite employee............. 592 573 (3.2)% Average number of worksite employees paid per month.... 15,500 19,255 24.2%
Revenues The Company's revenues increased 26.9% over 1994 due primarily to an increased number of worksite employees paid during the period. The Company continued to expand its sales force in late 1994 and throughout 1995 by opening sales offices in Atlanta (October 1994), Phoenix (January 1995), Chicago (April 1995) and Washington, D.C. (October 1995). These sales offices, along with the continued maturation of the Dallas sales office (opened in the fourth quarter of 1993) were the primary factors contributing to the increased number of worksite employees. The Company's new markets contributed $109.8 million of the Company's 1995 total revenues. In addition, in January 1995, the Company enrolled, through a referral agreement with an unaffiliated professional employer organization in Chicago, approximately 1,400 worksite employees which also contributed to the increase over 1994. Revenue per employee increased only slightly versus 1994. Gross Profit Margin Gross profit margin decreased from 4.5% in 1994 to 4.0% in 1995. The factors that caused this decline were a decline in the gross markup per worksite employee (the net of revenue per worksite employee and payroll cost per worksite employee) partially offset by a reduction, as a percent of revenue, in the costs of providing employee benefits. The monthly revenue per worksite employee increased slightly during 1995 compared to 1994. The monthly payroll cost per worksite employee increased at a greater rate than the increased revenue per worksite employee in the same period resulting in a 3.2% reduction in the gross markup per worksite employee. This reduction reflects the effects of a shift in the relative mix of worksite employees paid by the Company to higher wage, less risk sensitive employees on which the Company charges lower overall rates as a percentage of gross payroll. The reduction in employee benefits costs relative to revenues was primarily due to a reduction in workers' compensation costs partially offset by increased medical plan premiums. Workers' compensation costs declined primarily due to the Company's conversion to a guaranteed cost policy in the fourth quarter of 1994 from the previous high deductible paid loss policy. The high deductible paid loss policy resulted in increases to accrued workers' compensation claims which were significantly higher during 1994 than during 1995. In addition, during the third quarter of 1995, the Company settled the remaining outstanding claims under certain retrospective rating policies in effect in prior years resulting in a $1 million reduction in overall workers' compensation costs during 1995. Medical plan premiums increased compared to 1994 as favorable medical claims experience during 1993 and early 1994 resulted in reduced health insurance premiums during much of 1994. 27 30 Employment related taxes relative to payroll costs increased slightly due to state unemployment tax rate increases. Operating Expenses The Company's operating income decreased from $5.9 million in 1994 to $2.2 million in 1995. In addition to the decline in gross profit margin discussed above, operating expenses increased from 3.4% of revenue in 1994 to 3.7% of revenue in 1995. The increase in operating expenses relative to revenues can be attributed primarily to increased salaries, wages and payroll taxes and the selling, advertising and other general and administrative expenses incurred in connection with the Company's market expansion plan. The operating expenses associated with the Company's market expansion plan consist of those incurred in the new markets and those necessary for expansion of sales and service capacity to meet expected growth. Expenses incurred in new markets generally commence 90 days prior to the opening of a new sales office. The Company generally expects the expenses in a new market to be covered by the gross profit from that market's revenues within approximately two years. The expenses in each new market are comprised of salaries, payroll taxes, benefits, recruiting and training costs of newly hired sales associates, advertising and public relations costs and general office expenses. These expenses for 1995 totaled approximately $4.3 million versus $987,000 in 1994. Costs associated with the expansion of sales and service capacity primarily relate to the addition of corporate employees and other general and administrative expenses. Excluding expenses directly incurred in new markets, salaries, wages and payroll taxes increased $2.1 million during 1995 over those incurred in 1994. The Company's average staff increased from 221 for 1994 to 320 for 1995. These increases reflected both an increase in the size of the Company's sales force, from 22 at January 1, 1994 to 84 at December 31, 1995, and an increase in the corporate infrastructure to manage the overall growth of the Company. Advertising expenses in the Company's expansion markets were $1.8 million in 1995 versus $516,000 during 1994. The Company's total advertising expenses increased by $1.5 million, or 82%, over 1994. The higher level of revenues during 1995 also contributed to an increase of approximately $711,000 for sales commissions. Such increase did not represent a significant change from costs incurred during 1994 when considered as a percent of payroll costs of worksite employees. Depreciation and amortization expense increased $327,000 in 1995 as compared to 1994 due to capital expenditures incurred in connection with the establishment of a disaster recovery computer and operations center and the opening of new sales offices as part of the Company's market expansion plan. Net Income Interest expense increased $289,000 over 1994 due to a full year of interest on the $4,000,000 subordinated debt borrowings compared to only seven months in 1994. Interest income increased $219,000 over 1994 due to higher level of funds available for investment during the period. The Company's provision for income taxes differs from the U.S. statutory rate of 34% primarily due to state income taxes. Net income for 1995 was $1.1 million versus $3.8 million in 1994. The decline in net income is attributable primarily to a decline in the overall gross profit margin combined with increases in operating expenses associated with the Company's market expansion plan as discussed above. 28 31 YEAR ENDED DECEMBER 31, 1994 COMPARED TO YEAR ENDED DECEMBER 31, 1993 The following table represents certain information related to the Company's results of operations for the years ended December 31, 1993 and 1994.
YEAR ENDED DECEMBER 31, ----------------------- 1993 1994 CHANGE -------- -------- ------ (OPERATING RESULTS IN THOUSANDS) OPERATING RESULTS: Revenues................................................. $496,058 $564,459 13.8% Gross profit............................................. 19,782 25,196 27.4% Gross profit margin...................................... 4.0% 4.5% Operating income......................................... 3,127 5,859 87.4% STATISTICAL DATA: Monthly revenue per worksite employee.................... $ 2,676 $ 2,860 6.9% Monthly payroll cost per worksite employee............... 2,117 2,268 7.1% Monthly gross markup per worksite employee............... 559 592 5.9% Average number of worksite employees paid per month...... 14,590 15,500 6.2%
Revenues The Company's revenues increased 13.8% over 1993 due to a 6.2% increase in the number of worksite employees paid during the year combined with a 6.9% increase in the revenue per employee. The increased number of worksite employees paid primarily resulted from the ongoing sales effort in existing markets. The increase in revenue per worksite employee is directly related to the increase in payroll cost per worksite employee discussed below. Gross Profit Margin Gross profit margin increased from 4.0% in 1993 to 4.5% in 1994. The key factor that caused this increase was an overall reduction, as a percent of revenue, in the costs of providing employee benefits, partially offset by a slight increase in employment related taxes. The reduction in employee benefits costs relative to revenues was primarily due to a reduction in health insurance premiums, which were lowered from 1993 levels as a result of the Company's favorable medical claims experience during 1993 and early 1994. However, workers' compensation costs increased in 1994 versus 1993 partially offsetting the effect of reduced health insurance costs. Prior to November 1994 the Company was insured under a high deductible paid loss workers' compensation policy. This type of policy resulted in the Company recording significant additions to its accrued workers' compensation claims during 1994 resulting from revised ultimate loss estimates that relate to accidents covered under this policy. In order to achieve more predictable costs for its workers' compensation program, the Company purchased a guaranteed cost policy in the fourth quarter of 1994. This policy provides "first dollar" coverage on all claims arising under the policy with a fixed monthly premium for one year. The monthly revenue per worksite employee increased 6.9% over 1993, an increase proportionate with the 7.1% increase in monthly payroll cost per worksite employee. These factors combined for a 5.9% increase in gross markup per employee, which reflects the Company's continuing efforts to attract higher wage earners through its strategic target customer selection criteria. Increases in wage levels throughout the Company's worksite employee population are also reflected in the increases in monthly revenue and payroll cost per worksite employee. These increases contributed to the overall 27.4% increase in gross profit versus 1993. Operating Expenses The Company's operating income increased 87.4% from $3.1 million in 1993 to $5.9 million in 1994. This increase resulted primarily from the increase in gross profit discussed above. Operating expenses remained essentially unchanged as a percentage of revenues. 29 32 The operating expenses directly associated with the Company's market expansion plan were $987,000 in 1994 versus $249,000 in 1993. Excluding expenses directly incurred in the new markets, salaries, wages and payroll taxes of corporate employees increased $1.7 million compared to 1993. The Company's average corporate staff increased from 170 in 1993 to 221 in 1994 and the Company had 192 corporate employees at December 31, 1993 versus 271 at December 31, 1994. These increases reflected both an increase in the size of the Company's sales force from 22 at December 31, 1993 to 51 at December 31, 1994 and an increase in the corporate infrastructure required to process current and future expansion. Included in this increase was the Company's formation of an internal Information Technology department in July 1993 to assume responsibilities previously outsourced by the Company. Higher revenues contributed to an increase of $256,000 in sales commissions which are based on the gross payroll of worksite employees. These costs did not change significantly from 1993 as a percent of payroll costs of worksite employees. Advertising expenses increased by $185,000, or 11%, a movement consistent with increasing revenues. The second half of 1994 reflected a further acceleration in advertising expenditures. Depreciation and amortization expense increased $206,000 over 1993 due to capital expenditures incurred during the year related to the establishment of a disaster recovery computer and operations center in Las Colinas (a suburb of Dallas, Texas). Capital expenditures related to the opening of new sales offices as part of the Company's market expansion plan also contributed to the increase. Net Income Interest expense increased $307,000 in 1994 due to the $4.0 million subordinated debt incurred in May 1994. Interest income increased $129,000 over 1993 due to higher levels of funds available for investment following the capital investment and subordinated debt proceeds received in May 1994. The Company's provision for income taxes differs from the U.S. statutory rate of 34% due to state income taxes. All of the factors noted above, particularly the revenue growth and resulting effect on gross profit, partially offset by the impact of the initial stages of the Company's market expansion program, resulted in net income increasing from $1.9 million in 1993 to $3.8 million in 1994. LIQUIDITY AND CAPITAL RESOURCES The Company periodically evaluates its liquidity requirements, capital needs and availability of resources in view of, among other things, expansion plans, accrued workers' compensation insurance claims liabilities, debt service requirements and other operating cash needs. As a result of this process, the Company has, in the past, sought and may, in the future, seek to raise additional capital or take other steps to increase or manage its liquidity and capital resources. The Company currently believes that the proceeds of this offering, its cash on hand, cash flows from operations and available borrowing capacity under its Credit Agreement will be adequate to meet its liquidity requirements through at least 1997. The Company will rely on these same sources, as well as public and private debt and equity financing, to meet its long-term liquidity needs. The Company has $9.6 million in cash and cash equivalents at September 30, 1996 which is available to the Company for general corporate purposes, including, but not limited to, current working capital requirements, expenditures related to the continued expansion of the Company's sales force through the opening of new sales offices, capital expenditures and repayments of existing indebtedness. The Company has no significant long-term debt repayment requirements during 1997. At September 30, 1996 the Company had positive working capital of $3.3 million which is a slight decline from $4.7 million at December 31, 1995. This decline was due primarily to capital expenditures incurred during the period offset partially by the net income for the period. 30 33 Cash Flows From Operating Activities The Company's cash flows from operating activities in the nine months ended September 30, 1996 increased substantially from the comparable period in 1995. This increase resulted from federal and state income tax payments relating to 1994 totaling $2.0 million paid in the 1995 period versus federal income tax refunds received totaling $3.5 million during the nine months ended September 30, 1996; higher payments in the 1995 period for previously accrued workers' compensation claims; and the timing of accounts receivable collection at the end of the respective periods. Cash Flows From Investing Activities Capital expenditures during the nine months ended September 30, 1996 totaled $3.4 million and were incurred primarily in the first quarter to complete, furnish and equip a Company-owned facility to accommodate continued growth in corporate employees. This facility was opened in February 1996. Net dispositions of marketable securities of $4.0 million in the nine months ended September 30, 1995, resulted primarily from marketable securities with a carrying value of $3.8 million reaching maturity and being converted to cash equivalents. In January 1995, the Company acquired a client base in its Chicago market through a referral agreement calling for a referral fee which totaled $420,000 payable to the referring organization based on the number of worksite employees enrolled by Administaff. The remainder of the increase in intangible assets in both years relates to costs incurred for the rewrite of the Company's computerized payroll software system in both periods. Cash Flows From Financing Activities Cash flows from financing activities in the nine months ended September 30, 1996 and 1995 include loans to employees related to the federal income tax impact of the exercise of stock options and, in the 1995 period, from the proceeds received from the exercise of such options. In the 1996 period, the Company borrowed, on two occasions, amounts against its $10 million revolving credit agreement totaling $2.5 million. Both borrowings were repaid during the third quarter of 1996. Credit Agreement In October 1995 the Company's wholly-owned subsidiary, Administaff of Texas, Inc. ("Administaff of Texas"), entered into a $10 million revolving credit agreement (the "Credit Agreement") with a bank. Such Credit Agreement includes an agreement to issue standby letters of credit (in an amount not to exceed a sublimit of $5,000,000). The Company is a guarantor under the Credit Agreement. The Credit Agreement includes, among other covenants, a limitation on the declaration and payment of dividends, a change of control provision and other covenants customary in lending transactions of this type. At September 30, 1996 no borrowings were outstanding under the Credit Agreement and the Company expects that no borrowings will be outstanding at the time the offering is consummated. Borrowings under the Credit Agreement bear interest at rates based on the bank's Corporate Base Rate of LIBOR plus an applicable margin at the time of the borrowing. Expansion Plan The Company currently intends to allocate approximately $12 million of the estimated $37.3 million it will receive in net proceeds from this offering to its expansion plan. The Company's expansion plan currently calls for it to enter at least one new market or open at least one additional sales office in an existing market in each quarter of 1997 and 1998. While costs associated with opening additional sales offices vary from market to market due to a number of factors, including costs of advertising, the Company believes, based on historical experience, that its expansion plan will require investments of approximately $6 million in each of 1997 and 1998. The Company believes that the portion of the offering proceeds allocated to expansion will be sufficient to fund this expansion plan for the next two years. The balance of the proceeds of the offering will be used for 31 34 general corporate purposes and for acquisitions of existing PEO operations should favorable acquisition opportunities arise. Pending the application of the proceeds, the Company will invest such funds in diversified, highly-liquid, investment grade, interest bearing instruments. The Company anticipates that such investments will generally consist of U.S. government obligations, certificates of deposit issued by large commercial banks, investment grade commercial paper, Eurodollar time deposits and investment grade municipal bonds. See "Use of Proceeds." OTHER MATTERS The Company's net deferred income tax assets and liabilities have fluctuated significantly from December 31, 1994 to September 30, 1996. At December 31, 1994, the Company had net deferred tax assets of $2.2 million, relating primarily to accrued workers' compensation claims for which tax deductions were not available until the claims were paid. During 1995, a significant portion of these claims were paid resulting in substantial deductions for income tax purposes. Therefore, as of December 31, 1995, net deferred tax assets were reduced to near zero. The Company had net deferred tax liabilities of $1.1 million at September 30, 1996 due primarily to the phase in of a change in accounting method for income tax purposes. In January and May 1996, the IRS approved the Company's request for a change in the method of accounting for PEO service fees and worksite employee payroll costs to the accrual method. These changes were adopted for financial reporting purposes effective January 1, 1994. For PEO service fees the change was approved effective January 1, 1995 with a three year phase in period for the cumulative effect of the change. For worksite employee payroll costs, the change was approved effective January 1, 1995 with a one year phase in period for the cumulative effect of the change. As a result, the Company amended its 1995 consolidated federal income tax return to account for these changes. The Company received $3.5 million in federal income tax refunds in May and July 1996 related to the original and amended tax returns. Deferred income taxes at September 30, 1996 reflected the effect of the three year phase in for the cumulative effect of the change in accounting for PEO service fees as a component of net current and noncurrent deferred tax liabilities. See Note 3 of Notes to Consolidated Financial Statements (unaudited) for the nine months ended September 30, 1996. During the third quarter of 1996, the Company recorded an accrual for its estimate of the cost of corrective measures and penalties relating to the 401(k) Plan's failure to comply with certain nondiscrimination tests required by the Code. See "Risk Factors -- Costs of 401(k) Plan Compliance," "Industry Regulation -- Employee Benefit Plans" and Note 4 of Notes to Consolidated Financial Statements (unaudited) for the nine months ended September 30, 1996. In addition, during the third quarter of 1996, the Company recorded an asset for an amount recoverable from the 401(k) Plan's record keeper should the Company ultimately be required to pay the amount accrued for such corrective measures and penalties. The income tax effects of these items are reflected in the Company's net deferred tax liabilities as of September 30, 1996. Based on its understanding of the settlement experience of other companies in similar situations, the Company does not believe the ultimate resolution of this 401(k) Plan matter will have a material adverse effect on the Company's financial condition, results of operations or liquidity. SEASONALITY, INFLATION AND QUARTERLY FLUCTUATIONS The timing of the assessment of employment related taxes has a seasonal effect on the Company's cash flows, with the Company generally having lower cash flow from operations during the first six months of each year. As individual worksite employees meet applicable wage limits for such taxes, the Company's employment tax obligation declines which increases cash flows from operations during the balance of the year. The Company believes the effects of inflation have not had a significant impact on its results of operations or financial condition. The Company's operating results have historically fluctuated from quarter to quarter. In addition, due to the timing of the assessment of employment related taxes, the Company's gross profit margin typically improves from quarter to quarter within each year with the first quarter generally being the least favorable. Employment related taxes are based on the cumulative earnings of individual employees up to a specified wage level. Since the Company's revenues related to an individual employee are generally earned and collected at a relatively constant rate throughout each year, payment of such unemployment tax obligations has a substantial impact on the Company's financial condition or results of operations during the first six months of each year. 32 35 BUSINESS Administaff is a leading provider of professional employer services, both in terms of number of worksite employees and in terms of revenues, with current operations in 10 markets, including Houston, San Antonio, Austin, Orlando, Dallas, Atlanta, Phoenix, Chicago, Baltimore/Washington, D.C. and Denver. The Company serves over 1,500 client companies with approximately 23,800 worksite employees as of December 31, 1996 and believes that it currently ranks, in terms of revenues and worksite employee base, as one of the three largest professional employer organizations in the United States. The Company has grown significantly since it was founded in 1986. Revenues (which include the payroll of worksite employees) were $4.1 million for 1987, the Company's first full year of operations, and increased to over $716 million for fiscal 1995, with corresponding gross profit and net income of $28.9 million and $1.1 million, respectively. Houston is the Company's original location and accounted for approximately 50% of the Company's current revenues as of September 30, 1996, with other Texas markets accounting for an additional 30%. In October 1993 the Company opened a sales office in Dallas as the first step in implementing a long-term internal growth and expansion strategy. Subsequent to obtaining expansion capital in May 1994, the Company opened sales offices in Atlanta and Phoenix in accordance with its market expansion plan. During 1995, the Company established a presence in Chicago, both by entering into a referral agreement with an unaffiliated PEO organization and by opening a sales office, and opened an additional sales office in the Baltimore/Washington, D.C. area. The Company opened a second office in Dallas in January 1996 and opened an office in Denver in September 1996. The Company plans to enter at least one new market or open at least one additional sales office in an existing market in each quarter of 1997 and 1998. Administaff's goal is to improve the productivity and profitability of small businesses (generally, businesses with 100 or fewer employees) by relieving business owners and key executives of administrative and regulatory burdens, enabling them to focus on the core competencies of their businesses, and by promoting employee satisfaction through human resource management techniques that improve employee performance. The Company provides a comprehensive personnel management system which encompasses a broad range of services, including benefits and payroll administration, medical and workers' compensation insurance programs, payroll tax filings, personnel records management, liability management and other human resource services. Administaff delivers these services by becoming an employer for substantially all personnel management matters. The fees charged by the Company (which averaged approximately 123.6% of total payroll costs during the nine-month period ended September 30, 1996) are invoiced along with each periodic payroll of the client and include the gross payroll of each client plus the Company's estimated costs of paying employment related taxes, providing human resource services, performing administrative functions, providing insurance coverages and benefit plans and performing other services offered by the Company. Administaff provides these services by entering into a Client Service Agreement which establishes a three party relationship whereby the Company and client act as co-employers of the worksite employees. Responsibilities are allocated between the co-employers pursuant to the Client Service Agreement, with Administaff assuming responsibility for personnel administration and compliance with most employment-related governmental regulations. The client company retains the employee's services in its business and remains the employer for various other purposes. Companies providing comprehensive services in this manner have come to be known as professional employer organizations, or PEOs, as distinguished from "fee for service" companies, such as payroll processing firms, human resource consultants and safety consulting firms, that provide a specific service to a client under a traditional two party contract. PEO INDUSTRY The PEO industry began to evolve in the early 1980's largely in response to the burdens placed on small to medium sized employers by an increasingly complex legal and regulatory environment. While various service providers, such as payroll processing firms, benefits and safety consultants and temporary services firms were available to assist these businesses with specific tasks, PEOs began to emerge as providers of a more comprehensive range of services relating to the employer/employee relationship. As initially conceived, these services involved the concept of staff leasing, whereby a service provider would become an employer of the client company's employees, and would lease these employees to the client to perform their intended functions 33 36 at the worksite. As the industry has evolved the term "professional employer organization" has come to describe an entity that enters into a three-party relationship among the PEO, the client business and the employee. Administaff establishes such three-party relationships through the Client Service Agreement entered between the Company and the client business. The Client Service Agreement provides for an initial one year term (subject to cancellation on 30 days notice), sets forth the service fee payable to the Company and establishes the division of responsibilities between Administaff and the client as co-employers. In consideration for payment of the service fee (which vary based upon relative employment tax rates, benefits participation, workers' compensation risk profile, and level of pay of worksite employees, and averaged approximately 123.6% of total payroll costs incurred during the nine-month period ended September 30, 1996), the Company has the obligation to pay the direct costs associated with the agreement, which generally consist of (i) the salaries and wages of the worksite employees, (ii) employment related taxes, (iii) employee benefit plan premiums, and (iv) workers' compensation insurance premiums and (v) administrative costs and related expenses, in each case regardless of whether the client company pays Administaff the associated service fee. For a further description of the Client Service Agreement and the responsibilities of Administaff and the client company thereunder, see "-- Customers." PEO arrangements (including the Client Service Agreement) generally transfer broad aspects of the employer/employee relationship to the PEO. Because the business of the PEO is to enter into these relationships and provide employee related services to a large number of employees, the PEO can achieve economies of scale as a professional employer and perform the employment related functions at a level typically available only to large corporations with substantial resources to devote to human resources management. Growth in the PEO industry has been significant. According to NAPEO, the number of employees under PEO arrangements in the United States has grown from approximately 10,000 in 1984 to approximately 2.0 million in 1995. Administaff believes that the key factors driving demand for PEO services include (i) complex regulation of labor and employment issues and the related costs of compliance, including the allocation of time and effort to such functions by owners and key executives, (ii) the need to provide competitive health care and related benefits to employees of small businesses, (iii) the increasing costs associated with workers' compensation and health insurance coverage, workplace safety programs, employee related complaints and litigation and (iv) trends relating to the growth and productivity of the small business community in the United States. A critical aspect of the growth of the PEO industry has been increasing recognition and acceptance by federal and state governmental authorities of PEOs and the employer/employee relationship created by PEOs. As the concept of PEO services became understood by regulatory authorities, the regulatory environment began to shift from one of hostility and skepticism to one of regulatory cooperation with the industry. During the mid to late 1980's, legitimate industry participants were challenged to overcome well publicized failures of financially unsound and in some cases unscrupulous operators. Given this environment, Administaff and other industry leaders, in concert with NAPEO, have worked with the relevant government entities for the establishment of a regulatory framework that would protect clients and employees and discourage unscrupulous and financially unsound operators, and thereby promote the legitimacy and further development of the industry. For a description of the states in which the Company operates that require licensing or registration, see "Industry Regulation -- State Regulation -- Other State Regulation." While many states do not explicitly regulate PEOs, 16 states (including Texas) have enacted legislation containing licensing or registration requirements and at least four states are considering such regulation. Such laws vary from state to state but generally provide for monitoring the fiscal responsibility of PEOs. State regulation assists in screening insufficiently capitalized PEO operations and, in the Company's view, has the effect of legitimizing the PEO industry generally by resolving interpretive issues concerning employee status for specific purposes under applicable state law. The Company has actively supported such regulatory efforts. As an active member of NAPEO, the Company participated in the development of regulations affecting all member organizations, and believes that these regulations further enhance the credibility of the PEO industry. 34 37 The Company does not view the burdens of compliance with these regulations as material to its business operations. As the PEO industry has developed, the more established PEOs are experiencing an increasing level of support from vendors who have a stake in the success of the industry. For example, increased cooperation and flexibility from insurance carriers have proved invaluable to Administaff in designing policies that meet the needs of a large PEO. STRATEGY The Company's objective is to become the leading provider of PEO services in the United States while achieving sustainable revenue and income growth. Key elements of the Company's strategy were developed by the Company's core management team which has remained in place since the Company's founding in 1986. Since that time, the Company has concentrated substantial financial and management resources on developing, defining and optimizing a personnel management system for small businesses and on building an organizational infrastructure designed to enable the Company to replicate proven growth patterns while balancing revenue and income growth objectives. The key elements of the Company's strategy include: - Providing the highest quality services to help improve the productivity and profitability of the Company's clients. Administaff focuses on providing high quality services that directly enhance the productivity and profitability of small businesses. Achieving these efficiencies not only provides an obvious benefit to clients, it also benefits the Company in three distinct ways. First, to the extent that enhanced productivity results in client growth, Administaff's revenue base also grows. Second, clients who experience improved profitability best understand the value of Administaff's services and prove to be the Company's most effective referral sources. Finally, client productivity facilitated by Administaff promotes a long-term client relationship. Although the Company's client services contracts provide for only a one year initial term and are terminable on 30-days' notice at any time, in excess of 80% of Administaff's clients remain for more than one year and the retention rate increases for clients who remain with Administaff for longer periods. In accordance with NAPEO standards, retention rates are calculated by dividing the number of Company clients at December 31 by the number of clients at January 1 of the same year plus clients added during such year. - Continuing to enter and establish a leading position in new markets. In 1993, the Company identified 36 markets as its most attractive expansion targets and has opened sales offices in six of these markets. The Company plans to enter at least one new market or open one additional sales office in an existing market in each quarter of 1997 and 1998 and believes that the proceeds from this offering will be sufficient to cover such expansion. Through the use of a market selection model which evaluates a broad range of criteria, Administaff selects new markets where it believes it is most likely to replicate its historical growth patterns and market penetration. While most of the Company's expansion has been the result of opening sales offices, the Company has and will continue to consider expansion through strategic acquisitions. The Company believes that increasing industry regulatory complexity, including the difficulties of complying with the applicable state laws, and the increasing capital commitments required of PEOs to provide larger service delivery infrastructures and management information systems should lead to significant consolidation opportunities in the PEO industry. The Company's market development strategy combines intensive direct marketing efforts with a fully integrated public relations and advertising campaign. While the expense associated with entering and developing a new market is significant, the Company views this investment as essential to achieving desired growth and extending its national leadership position. The Company generally expects expenses in a new market to be covered by the gross profit from that market within two years. 35 38 - Growing existing markets through additional market penetration and marketing alliances. The Company believes that additional market penetration in established markets offers significant growth potential. Based on information contained in a database developed by ABI, the Company believes that it serves less than 6.0% of the total number of businesses in Houston meeting its target criteria described below. In established markets, the Company's ability to achieve its growth objectives is enhanced by a higher number of referrals, a higher client retention rate, a more experienced sales force and momentum in its marketing efforts. The Company is also actively pursuing the formation of certain strategic alliances with other providers of various administrative and office services to small businesses as an alternative method for achieving growth in existing markets. The Company selectively opens additional sales offices and hires additional sales personnel in established markets to capitalize on these advantages and to achieve higher penetration. - Targeting and enrolling clients that are consistent with the Company's overall strategy and risk profile objectives. The Company seeks to attract clients whose objectives in utilizing Administaff's PEO services primarily relate to enhancing productivity rather than short-term cost cutting. The Company's clients tend to be established, financially successful and likely to recognize the value of a broad range of services which enable the client to concentrate on its core business. Administaff's target client has from five to 100 employees and must meet certain additional criteria relating to industrial classification, workers' compensation, health and unemployment claims history and operating stability. These criteria, which constitute part of the Company's screening process, are intended to avoid a skewing of the Company's client base to higher risk clients. Through this process, the Company seeks to continue to build a solid client base characterized by high year-to-year retention and client employee growth while maintaining a predictable and controllable direct cost structure. - Capitalizing on economies of scale while actively managing and controlling direct costs. The Company enjoys economies of scale which allow it to provide small businesses with a level of human resource management typically found only in large corporations. The Company aggressively pursues scale advantages in order to maximize profits and to provide its clients with premium services at competitive prices. In this regard, Administaff focuses on key relationships with insurance providers to design coverage and premium structures that not only provide cost effective and appropriate protection for clients, but also enable the Company to control major components of its direct costs. These economies and tailored coverages are achievable both because of the Company's sophistication as a purchaser of insurance products and its status as a large customer of such providers. The Company also employs a variety of proactive personnel management techniques to help minimize the incidence and magnitude of employee claims, complaints and related costs. The Company expects that the economies resulting from active control and management of direct costs will continue to enhance profitability. No assurance can be given that the Company will be successful in implementing its strategy or that, even if successful, such implementation will have the intended effects on the Company's future revenue, operating expenses or net income. 36 39 CLIENT SERVICES Administaff provides a comprehensive Personnel Management System encompassing a broad range of services, including personnel management, benefits and payroll administration, medical and workers' compensation insurance programs, tax filings, personnel records management, liability management and related human resource services. Among the laws and regulations that may affect a small business are the following: - Internal Revenue Code (IRC) - Federal Income Contribution Act (FICA) - Employee Retirement Income Security Act (ERISA) - Occupational Safety and Health Act (OSHA) - Federal Unemployment Tax Act (FUTA) - Fair Labor Standards Act (FLSA) - Consolidated Omnibus Budget Reconciliation Act of 1987 (COBRA) - Immigration Reform and Control Act (IRCA) - Title VII (Civil Rights Act of 1964) - - Civil Rights Act of 1991 - - Americans with Disabilities Act (ADA) - - Tax Equalization and Fiscal Responsibility Act (TEFRA) - - Age Discrimination in Employment Act (ADEA) - - Drug-Free Workplace Act - - Consumer Credit Protection Act - - The Family and Medical Leave Act of 1993 - - State unemployment and employment securities laws - - State workers' compensation laws While these regulations are complex and in some instances overlapping, Administaff assists in achieving client companies' compliance by providing services in four primary categories: administrative functions, benefit plans and administration, personnel management and liability management. Once a client company has executed a Client Service Agreement, the Client Services Department serves as the client's principal point of contact with Administaff and coordinates the delivery of all of the services described below. For a more detailed description of responsibility for compliance with each of the laws set forth above, see "-- Customers." Administrative Functions. Administrative functions encompass a wide variety of processing and record keeping tasks, mostly related to payroll administration, government compliance and employee benefit plan filing. Specific examples include payroll processing, payroll tax deposits, quarterly tax reporting, employee file maintenance, unemployment claims, workers' compensation reporting, and monitoring and responding to changing regulatory requirements. Benefit Plans and Administration. Administaff currently offers the following plans that the client may elect to provide worksite employees: comprehensive health, dental, vision, prenatal care, prescription card, counseling, education assistance and adoption assistance. Insurance coverages also include group term life, universal life, accidental death and dismemberment and long-term disability. Each client company can select from among several different packages of these plans in accordance with its needs. Administaff also offers a retirement savings (401(k)) plan to its eligible employees. As part of its service package, the Company administers these benefit plans and is responsible for negotiating the benefits and costs of such plans. The Company's Benefits Administration Department serves as liaison for the delivery of such services to the worksite employee and monitors and reviews claims for loss control purposes. The Company believes that this type of intensive benefit management is usually found only in larger companies that can spread program costs across many employees. Moreover, the Company believes that the availability and administration of these benefits tends to mitigate the competitive disadvantage small businesses normally face in the areas of cost control and employee recruiting and retention. Personnel Management. The wide variety of personnel management services provided by Administaff allow its client companies access to resources normally found only in the human resources departments of large companies. On-site supervisors are provided with a detailed personnel guide, which sets forth a systematic approach to administering personnel policies and practices including recruiting, discipline and termination procedures. Personnel policies and employee handbooks are reviewed and revised, if necessary, or 37 40 customized handbooks can be created. The Company assists clients with the development of refined job descriptions as well as a systematic performance appraisal process. A variety of employee assistance programs can be implemented where needed, including orientation, training, counseling, substance abuse awareness and outplacement services. In addition, clients' management are provided with detailed information, compiled from the Company's experience, regarding competitive salaries for a wide range of positions across the country. Liability Management. Liability management services consist of several functions. First, pursuant to the Company's Client Service Agreement and basic to the Administaff client relationship, the Company assumes many of the liabilities associated with being an employer. These include liability for compliance with payroll tax reporting and payment obligations, workers' compensation regulations, COBRA, the Immigration Reform and Control Act and the Consumer Credit Protection Act. For those potential liabilities that Administaff does not assume, the Company assists its clients in managing and limiting exposure. This management for many clients includes first time and ongoing safety inspections as well as the implementation of safety programs designed to reduce workers' compensation claims. Administaff also advises clients on avoiding liability for discrimination, sexual harassment and civil rights violations and participates in termination decisions to attempt to secure protection from liability on those grounds. When a claim arises, the Company often assists in the client's defense regardless of whether the Company has been named directly. The Company's Legal Department employs attorneys specializing in several areas of employment law and has broad experience in disputes concerning the employer/employee relationship. This expertise allows Administaff's clients to contest many claims which they might otherwise have been inclined to settle. The Company also monitors changing government regulations and notifies clients of their effect on potential employer liability. Additional Services. All of Administaff's clients receive the foregoing services as part of the Company's basic package in consideration for payment by the clients of a comprehensive service fee. Administaff also provides supplemental services to its clients for additional fees, with the actual fee determined on the basis of the particular supplemental service to be rendered. These services include prospective employee screening and background investigations, drug testing, and pre-employment testing, scoring and reporting. The Company will also stage a wide variety of seminars for both employees and management, on subjects such as communication, leadership, motivation and time and stress management skills. While these services constitute an immaterial source of additional revenue to Administaff, they afford the Company an opportunity to solidify its relationships with existing clients. Moreover, to the extent these services tend to reduce liability these services serve as an additional element of the Company's liability and risk management process. 38 41 CUSTOMERS Administaff's customer base consists of over 1,500 client companies, representing approximately 23,800 worksite employees as of December 31, 1996. The Company's clients have an average of 16 employees, with approximately 72% having between five and 49 employees. The Company's client base is broadly distributed throughout a wide variety of industries. As of September 30, 1996 the Company had customers representing approximately 430 Standard Industrial Classification ("SIC") codes, and no more than 7% of the Company's customers were classified in any one SIC code. Administaff's approximate client company distribution by major SIC code industry grouping as of September 30, 1996 is set forth below: Services................................................................ 26% Construction............................................................ 14% Manufacturing........................................................... 13% Wholesale Trade......................................................... 12% Finance, Insurance and Real Estate...................................... 10% Medical................................................................. 7% Retail Trade............................................................ 6% Transportation, Communications and Utilities............................ 5% Agriculture (Landscaping)............................................... 1% Legal................................................................... 1% Mining.................................................................. 1% Other................................................................... 4%
The Company attempts to maintain diversity within its client base to lower its exposure to downturns or volatility in any particular industry and help insulate the Company to some extent from general economic cyclicality. As part of its client selection strategy, the Company offers its services to businesses falling within specified SIC codes, essentially eliminating certain industries that it believes present a higher risk of employee injury (such as roofing, logging and oil and gas exploration). Businesses falling within other SIC codes are not accepted by Administaff. All prospective customers are also evaluated individually on the basis of workers' compensation risk, group medical history, unemployment history and operating stability. On average, Administaff's clients have been in business approximately 14 years before entering into the Administaff relationship. All clients enter into Administaff's Client Service Agreement. The Client Service Agreement provides for an initial one year term, subject to termination by the Company or the client at any time upon 30 days' prior written notice. After the initial term the contract may be renewed, terminated or continued on a month-to-month basis, although the Company's standard practice is to contact its clients prior to expiration of the initial term and attempt to renew the relationship for another one year term. The Company's service fee is set forth in the Client Service Agreement, and is based on a pricing model that takes into account the gross payroll of each employee plus the estimated costs of paying employment related taxes, providing human resource services, performing administrative functions and providing insurance coverages and benefit plans and other services offered by the Company. These items are combined to yield a service fee which is stated as a percentage of gross pay. Fees are invoiced along with each periodic payroll. Client specific information used to determine service fees is taken from a client census which reflects information on each employee of the client, including gross pay, workers' compensation classification, payroll frequency, whether medical benefits are provided, and various other data. Fees for a particular client are also influenced by that client's claims histories and other client specific factors. Payroll data on an employee by employee basis is entered into the Company's payroll database so that changes in the client's employee base will be automatically reflected in client invoices and in payroll disbursements made by Administaff. The Client Service Agreement also establishes the division of responsibilities between Administaff and the client as joint employers. Pursuant to the Client Service Agreement, Administaff is solely responsible for all personnel administration and is liable for purposes of certain government regulation. In addition, Administaff assumes liability for payment of salaries and wages of its worksite employees and responsibility for 39 42 providing employee benefits to such persons, regardless of whether the client company makes timely payment of the associated service fee. The client retains the employee's services and remains liable for the purposes of certain government regulations, compliance with which requires control of the worksite or daily supervisorial responsibility or is otherwise beyond Administaff's ability to assume. A third group of responsibilities and liabilities are shared by Administaff and the client where such joint responsibility is appropriate. The specific division of applicable responsibilities under the Client Service Agreement is as follows:
ADMINISTAFF CLIENT JOINT - --------------------------------- --------------------------------- --------------------------------- - - Tax reporting and payment - Assignment to, and ownership - Implementation of policies and (state and federal withholding, of, all intellectual property practices relating to the FICA, FUTA, state unemployment) rights employer/employee relationship - - Workers' compensation - Section 414(o) of the Code - Selection of fringe benefits, compliance, procurement, regarding benefit including employee leave management, reporting discrimination policies - - Employee benefit procurement - Professional liability or - Employer liability under malpractice workers' compensation laws - - Compliance with COBRA, - Compliance with OSHA - Compliance with Title VII of Immigration Reform and Control regulations, EPA regulations the Civil Rights Act of 1964, the Act, and Consumer Credit and any state or legal Age Discrimination in Protection Act, Title III, as equivalent government Employment Act, the Employment well as monitoring changes in contracting provisions, the Retirement Income Security Act, other governmental regulations Fair Labor Standards Act, the the Polygraph Protection Act, governing the employer/employee Worker Adjustment and Retaining the Federal Drug Free Workplace relationship and updating the Notification Act, professional Act (and any state or local client when necessary licensing requirements, equivalent), state employment fidelity bonding requirements discrimination laws
Because Administaff is a co-employer with the client company, it is possible that Administaff could incur liability for violations of such laws even if it is not responsible for the conduct giving rise to such liability. The Client Service Agreement addresses this issue by providing that the Company or the client will indemnify the other party for liability incurred to the extent the liability is attributable to conduct by the indemnifying party. Notwithstanding this contractual right to indemnification, it is possible that Administaff could be unable to collect on a claim for indemnification and may therefore be ultimately responsible for satisfying the liability in question. The Company's total expense incurred with respect to such exposure was approximately $117,000 for the year ended December 31, 1995 and $49,000 for the nine months ended September 30, 1996. Administaff's client retention record reflects that a high percentage of its clients remain with the Company from year to year. Historical retention patterns indicate that in excess of 80% of Administaff's clients remain for over one year and that the attrition rate declines for clients who remain with Administaff for longer periods. Client attrition experienced by Administaff is attributable to a variety of factors, including (i) termination by Administaff resulting from the client's inability to make timely payments, (ii) client's non-renewal due to price, (iii) client business failure or downsizing and (iv) sale or disposition of the client company. The Company believes that only a small percentage of nonrenewing clients withdrew due to dissatisfaction with service or to retain the services of a competitor. Clients are required to pay Administaff no later than one day prior to the applicable payroll date by wire transfer or automatic clearinghouse transaction, and receipt of funds is verified prior to release of payroll. Although the Company is ultimately liable as employer to pay employees for work previously performed, it retains the ability to terminate the Client Service Agreement as well as the employees upon non-payment by a client. This right and the periodic nature of payroll, combined with client credit checks and the natural screening effect of the Company's client selection process, has resulted in an excellent collections history. During the period from January 1, 1987 to September 30, 1996, the Company has recorded a total of $419,000 in bad debt expense on approximately $3.4 billion of total revenues. 40 43 MARKETING AND SALES Administaff's marketing strategy is based on the application of techniques that have produced predictable results for the Company in the past. The Company develops a mix of advertising media and a placement strategy tailored to each individual market. After selecting a market and developing its marketing mix, but prior to entering the market, Administaff engages in an organized media and public relations campaign to prepare the market for the Company's entry, and to begin the process of generating sales leads. Administaff markets its services through a broad range of media outlets, including radio, newspapers, periodicals and direct mail. The Company employs a local public relations firm in each of its markets as well as an advertising firm to coordinate and implement its marketing campaigns, and has developed an inventory of proven, successful radio and newsprint advertisements which are utilized in this effort. In order to identify the most promising potential markets, the Company employs a systematic market evaluation and selection process. The Company evaluates a broad range of factors in the selection process, using a market selection model that weights various criteria that the Company believes are reliable predictors of successful penetration based on its experience. Among the factors considered are (i) market size, in terms of small businesses engaged in selected industries that meet the Company's risk profile, (ii) market receptivity to PEO services, including considerations such as regulatory environment, and relevant history with other PEO providers, (iii) existing relationships within a given market, such as vendor or client relationships, (iv) expansion cost issues, such as advertising and overhead costs, (v) potential direct cost issues that bear on the Company's effectiveness in controlling and managing the cost of its services, such as workers' compensation and health insurance costs, unemployment risks and various legal and other factors, (vi) a comparison of the services offered by Administaff to alternatives available to small businesses in the relevant market, such as the cost to the target clients of procuring services directly or through other PEOs and (vii) long-term strategy issues, such as general perception of markets and long-term revenue growth potential. Each of the Company's six newly opened markets, beginning with Dallas in October 1993, was selected in this manner. Administaff generates sales leads from three primary sources: direct sales efforts, advertising and referrals. These leads result in initial presentations to prospective clients, and, ultimately, a predictable number of client census reports. The client's census report reflects information gathered by the sales associate about the prospect's employees, including job classification, state of employment, workers' compensation claims history, health insurance claims history, salary, and similar information for each employee, and a desired level of benefits for the prospective client. This information is entered into the Company's data processing system, which applies the prospect's employee characteristics to Administaff's pricing model, leading to preparation of a bid. Concurrently with this process, the prospective client's workers' compensation and health insurance histories are forwarded to Company headquarters, where they are evaluated from a risk management perspective. Unfavorable aspects of either of these histories will result in termination of the sales effort and rejection of the prospect. This prospective client screening process plays a vital role in controlling the Company's benefits costs and limiting its exposure to liability. Upon completion of a favorable risk evaluation, the sales associate then presents the prospective client with the Company's bid and attempts to enroll the prospect. Each bid includes detailed information as to the rate (as a percentage of gross payroll) that will be charged for each employee by category (state of employment and job classification) and level of benefits. If a prospect accepts Administaff's proposal, the new client is quickly incorporated into the Company's system. The client executes the Client Service Agreement, and an orientation team initiates the process of transferring employee related functions to Administaff. See "-- Customers." The client's database is transferred to the Client Services Department, where Account Executives assume responsibility for administering the client's personnel and benefits, coordinate the Company's response to the client's needs for administrative support and respond to any questions or problems encountered by the client. See "-- Client Services." VENDOR RELATIONSHIPS Administaff provides benefits to its worksite employees under arrangements with a variety of vendors. Although the Company believes that any of its benefit contracts could be replaced if necessary with minimal 41 44 disruption to its operations, the Company considers four of such contracts to be significant elements of the package of benefits provided to employees. The Company's group health insurance plan is a fully insured plan provided by Aetna Life & Casualty Insurance Co. ("Aetna"). Each client company selects from a range of health plan coverages available under the plan and Administaff's fees to that client reflect the coverage options selected. The Company initiated insurance coverage with Aetna in 1989, became fully insured in 1992 and has maintained a fully-insured policy with Aetna since that time. The current policy expires December 31, 1997. The policy requires the Company to fund claims and premiums up to a specified monthly cap amount. Aetna is required to fund all claims and premiums, if any, in excess of the monthly cap amount. Monthly cap amounts are in place for quarterly periods and such cap amounts are adjustable, based on claims experience, with six months' notice by Aetna. While Aetna bears ultimate legal responsibility for all claims, because the Company bears the burden of higher costs as claims experience increases, the Company seeks to minimize health care claims through its benefits administration management practices. The Company's workers' compensation policy, a guaranteed cost plan whereby monthly premiums are paid for complete coverage of all claims under the policy, was originally put in place with Reliance National Indemnity Co. ("Reliance") in November 1994, and the current policy will continue in effect until October 31, 1997. Reliance has provided the Company's workers' compensation policies since 1990. In addition to its health and workers' compensation insurance policies, significant benefits contracts include the Company's long and short term disability policies with Fortis Benefits Insurance Co., which were put in place in January 1993 and August 1995, respectively, and continue until they are replaced or canceled. INFORMATION TECHNOLOGY The Company has developed state-of-the-art information technology capable of meeting the demands of payroll and related processing for the Company's worksite employees, satisfying the Company's administrative and management information needs, and providing productivity enhancement tools to the Company's corporate staff. While the Company utilizes commercially available software for standard business functions such as finance and accounting, it has developed a proprietary professional employer information system for the delivery of its primary services. This system manages data relating to worksite employee enrollment, human resource management, benefits administration, payroll processing, management information, and sales proposal bid calculation capabilities that are unique to the PEO industry and to Administaff. At the heart of the system is a high volume payroll processing system that allows the Company to produce and deliver hundreds of payrolls per day, each customized to the needs of the client companies. Administaff's proprietary PEO information system is now in its third generation, with the fourth generation nearing completion. The software has been developed using Informix, a relational database and program development language, and PowerBuilder, a state-of-the-art, object oriented client/server development system. The software is designed to provide high volume professional employer services utilizing a combination of on-line and batch processing facilities and can be readily expanded to handle additional processing needs. The system is accessed through a graphical user interface engineered to maximize both the quality of Administaff's services and the efficiency with which they are delivered. Administaff's primary information processing facility is located at the Company's corporate headquarters in Kingwood, Texas (near Houston). A second processing facility is located in Las Colinas, Texas (near Dallas). The Kingwood facility handles approximately two-thirds of the Company's daily client service load as well as administrative and management information processing. The Las Colinas facility handles approximately one-third of the daily client service load as well as acting as a disaster recovery facility for the Company capable of handling all of the Company's operations for a short period of time. Administaff's principal computing platform is the IBM RISC/6000. The Company utilizes six IBM RISC/6000s at its Kingwood facility and two at its Las Colinas facility. These processing facilities are linked by a high speed wide area network utilizing dedicated telecommunications facilities. The IBM RISC/6000 computers are also connected by local area networks to more than 300 IBM PC workstations running 42 45 Microsoft Windows(C) software. The Company's district sales offices are equipped with Microsoft NT Advanced Server(C) networks and are linked to the Kingwood and Las Colinas facilities through public telecommunications facilities. COMPETITION The PEO industry consists of approximately 2,000 companies, most of which serve a single market or region. The Company believes that it is one of three PEOs with annual revenue exceeding $500 million. The Company considers its primary competition to be the traditional in-house provision of employee services. In addition, the Company competes to some extent with fee-for-service providers such as payroll processors and human resource consultants. Competition in the PEO industry revolves primarily around breadth and quality of services, reputation, choice and quality of benefits and price. The Company believes that reputation, national presence, regulatory expertise, financial resources, risk management and data processing capability distinguish leading PEOs from the rest of the industry. The Company believes that it competes favorably in these areas. CORPORATE OFFICE EMPLOYEES The Company had over 360 corporate office and sales employees as of September 30, 1996. These employees are divided among the Company's 10 functional departments, with 25 employees in Corporate Services, 27 in Finance, 29 in Benefits Administration, 13 in Legal, 10 in Marketing, 28 in Information Technology, 70 in Client Services, 125 in Sales (including 80 sales associates), 31 in Human Resources and three in Emerging Business Services, each as of September 30, 1996. Approximately 240 employees are located at the Kingwood headquarters, 26 are based at the Las Colinas facility, and the remainder (principally the sales associates) are based at the Company's sales offices. FACILITIES Administaff maintains two primary facilities. The corporate headquarters are located in Kingwood, Texas (20 miles north of Houston), on approximately 17 acres owned by the Company. This location includes a 66,000 square foot campus style facility and a recently renovated 76,000 square foot facility that serves as the Company's operations and records retention facility. Together these facilities house the Company's executive offices, corporate staff, data-processing center, training facilities and all other corporate functions. The Company's other primary facility is located in Las Colinas, near Dallas, Texas. This 15,300 square foot leased facility, which became operational in October 1994, currently handles approximately one-third of the Company's data processing needs and serves as a backup data processing facility. The Company also leases eight other facilities in Houston, Orlando, Atlanta, Phoenix, Chicago, Washington, D.C./Baltimore and Denver that serve as sales offices. These offices are typically staffed by six to eight sales associates and a district sales manager. The Company believes that its facilities (certain portions of which have recently been completed) are adequate for the purposes for which they are intended and that its headquarters have sufficient additional capacity to accommodate the Company's foreseeable expansion plan. LEGAL PROCEEDINGS The Company is not a party to any material pending legal proceedings other than ordinary routine litigation incidental to its business that the Company believes would not have a material adverse effect on its financial condition or results of operations. 43 46 INDUSTRY REGULATION INTRODUCTION The Company's operations are affected by numerous federal and state laws relating to labor, tax and employment matters. By entering into a co-employer relationship with employees who are assigned to work at client company locations (sometimes referred to as "worksite employees"), the Company assumes certain obligations and responsibilities of an employer under these federal and state laws. Because many of these federal and state laws were enacted prior to the development of nontraditional employment relationships, such as professional employer, temporary employment and outsourcing arrangements, many of these laws do not specifically address the obligations and responsibilities of non-traditional employers. In addition, the definition of "employer" under these laws is not uniform. Some governmental agencies that regulate employment and labor laws have developed rules that specifically address labor and employment issues raised by the relationship among PEOs, in general, and the Company, in particular, client companies and worksite employees. This is particularly true in Texas where management has worked with numerous regulatory agencies and was instrumental in the ultimate passage of the Staff Leasing Services Licensing Act (the "Texas Staff Leasing Act"), an act which formally recognized the PEO industry in Texas and resolved prior interpretive disputes as to the status of PEOs. Existing regulations are relatively new and, therefore, their interpretation and application by administrative agencies and federal and state courts is limited or non-existent. The development of additional regulations and interpretation of existing regulations can be expected to evolve over time. While the Company cannot predict with certainty the nature or direction of the development of federal, state and local regulations, management will continue to pursue a proactive strategy of educating administrative authorities as to the advantages of PEOs and achieving regulation which appropriately accommodates their legitimate business function. Certain federal and state statutes and regulations use the terms "employee leasing" or "staff leasing" to describe the arrangement among a PEO, such as the Company, and its clients and worksite employees. The terms "employee leasing," "staff leasing" and "professional employer arrangements" are generally synonymous in such contexts and describe the arrangements entered into by the Company, its clients and worksite employees. As an employer, the Company is subject to all federal statutes and regulations governing its employer-employee relationships. Subject to the issues discussed below, the Company believes that its operations are in compliance in all material respects with all applicable federal statutes and regulations. EMPLOYEE BENEFIT PLANS The Company offers various employee benefit plans to its employees, including its worksite employees. These employee benefit plans are treated by the Company as constituting "single-employer" plans of the Company rather than multiple employer plans. These plans include the 401(k) Plan (a profit-sharing plan with a cash or deferred arrangement ("CODA") under Code Section 401(k) and a matching contributions feature under Code Section 401(m)), a cafeteria plan under Code Section 125, a group health plan, a group life insurance plan, a group disability insurance plan, an educational assistance plan, an adoption assistance program and an employee assistance plan. Generally, employee benefit plans are subject to provisions of both the Code and the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Employer Status. In order to qualify for favorable tax treatment under the Code, the plans must be established and maintained by an employer for the exclusive benefit of its employees. Generally, an entity is an "employer" of certain workers for federal employment tax purposes if an employment relationship exists between the entity and the workers under the common law test of employment. In addition, the officers of a corporation are deemed to be employees of that corporation for federal employment tax purposes. The common law test of employment, as applied by the IRS, involves an examination of approximately 20 factors to ascertain whether an employment relationship exists between a worker and a purported employer. That test is generally applied to determine whether an individual is an independent contractor or an employee for federal employment tax purposes and not to determine whether each of two or more companies is a "co-employer." 44 47 Substantial weight is typically given to the question of whether the purported employer has the right to direct and control the details of an individual's work. Among the various categories of factors which appear to be considered more important by the IRS are (1) the employer's degree of behavioral control (the extent of instructions, training and the nature of the work), (2) the financial control or the economic aspects of the relationship and (3) the intended relationship of the parties (are employee benefits provided, intent as evidenced by any contracts, permanency (that is, are services ongoing or for a project), any penalties for discharge/termination, and the frequency of the business activity). In 1992, the Company applied for and received a favorable determination from the IRS regarding the qualified status of the 401(k) Plan. In that application, the Company disclosed to the IRS that the Company is involved in the business of leasing employees to recipient companies and that the 401(k) Plan covered worksite employees who satisfied the plan's eligibility requirements. However, the statement that the 401(k) Plan covered worksite employees does not necessarily resolve the issue of who is the employer of those employees for purposes of the 401(k) Plan. The Company amended and restated the 401(k) Plan on December 15, 1994. Among other amendments, the Company added the matching contributions feature under Code Section 401(m) to the plan. In March 1995, the Company submitted the amended and restated 401(k) Plan to the IRS for a determination on its continued tax qualified status. The amended and restated 401(k) Plan is currently under review by the IRS. An IRS finding that the plan document merits tax qualified status is a determination as to the plan's form only and would not preclude a subsequent disqualification based on the plan's operation, including a finding that certain worksite employees are not employees of the Company for 401(k) Plan purposes. Separate from the IRS' review of the pending determination request, the Company's 401(k) Plan for the 1993 plan year is currently under audit. Although the audit is for the 1993 plan year, certain conclusions of the IRS would be applicable to other years as well. In addition, the IRS has established an Employee Leasing Market Segment Group for the purpose of identifying specific compliance issues prevalent in certain segments of the PEO industry. Approximately 70 PEOs, including the Company, have been randomly selected by the IRS for audit pursuant to this program. One issue that has arisen from these audits is the Industry Issue (whether a PEO can be a co-employer of worksite employees, including officers and owners of client companies, for various purposes under the Code, including participation in the PEO's 401(k) plan). NAPEO and the Company are cooperating with the IRS in this study of the PEO industry. With respect to the 401(k) Plan audit, the Company understands that the IRS Houston District intends to submit the Technical Advice Request to the IRS National Office. A draft copy of the Technical Advice Request has been provided to the Company for its comments before the IRS Houston District submits it to the IRS National Office. The draft of the Technical Advice Request contains the conclusions of the IRS Houston District with respect to the 1993 plan year that the 401(k) Plan should be disqualified because it (1) covers worksite employees who are not employees of the Company and (2) failed a nondiscrimination test applicable to contributions and the Company has not furnished evidence that the 401(k) Plan satisfies an alternative test. The Company understands that the Industry Issue identified by the Market Segment Group study also will be referred to the National Office. If the Company and the IRS Houston District do not agree on the facts and the issues to be presented in the Technical Advice Request, the Company may submit its own statement of the facts and issues and explanation of its position. If, after review, the IRS National Office concludes that its response to the Technical Advice Request will be adverse to Administaff, Administaff will be granted a conference with the National office to discuss the proposed results. If the Market Segment Group study were to reach a conclusion that is adverse to the PEO industry, there is an administrative procedure available to appeal that conclusion. In addition to working with the Market Segment Group study, NAPEO is actively engaged in policy discussions with both the Treasury Department and with members of Congress in an effort to reduce the likelihood of unfavorable conclusions and to procure favorable legislation. Whether the National Office will address the Technical Advice Request independently of the Industry Issue is unclear. The Company is not able to predict either the timing or the nature of any final decision that may be reached by the IRS with respect to the 401(k) Plan audit or with respect to the Technical Advice Request or the Market Segment Group study and the ultimate outcome of such decisions. Further, the Company is unable to predict whether the Treasury Department will issue a policy statement with respect to 45 48 its position on the issues or, if issued, whether such a statement would be favorable to the Company. The Company intends to vigorously pursue a favorable resolution of the issues through one or more of the following methods: the audit-Technical Advice Request, the Market Segment Group study process, the policy and legislative efforts, and, if necessary, legal action. If, however, any of these processes were to conclude that a PEO is not a co-employer of its worksite employees and such conclusion were to ultimately prevail, worksite employees could not continue to make salary deferral contributions to the 401(k) Plan or pursuant to the Company's cafeteria plan or continue to participate in certain other employee benefit plans of the Company. The Company believes that, although unfavorable to the Company, a prospective application by the IRS of such an adverse conclusion (that is, one applicable only to periods after the conclusion by the IRS is finalized) would not have a material adverse effect on its financial position or results of operations, as the Company could continue to make available similar benefit programs to its client companies at comparable costs to the Company. However, if the IRS National Office adopts the conclusions of the IRS Houston District and any such conclusion were applied retroactively to disqualify the 401(k) Plan for 1993 and subsequent years, employees' vested account balances under the 401(k) Plan would become taxable, the Company would lose its tax deductions to the extent its matching contributions were not vested, the 401(k) Plan's trust would become a taxable trust and the Company would be subject to liability with respect to its failure to withhold applicable taxes with respect to certain contributions and trust earnings. Further, the Company would be subject to liability, including penalties, with respect to its cafeteria plan for the failure to withhold and pay taxes applicable to salary deferral contributions by employees, including worksite employees. In such a scenario, the Company also would face the risk of client dissatisfaction and potential litigation. A retroactive application by the IRS of an adverse conclusion would have a material adverse effect on the Company's financial position and results of operations. While the Company believes that a retroactive disqualification is unlikely, there can be no assurance as to the ultimate resolution of these issues by the IRS. 401(k) Plan Nondiscrimination Testing Issues. In 1991 the Company engaged a third party vendor to be the 401(k) Plan's record keeper and to perform the required annual nondiscrimination tests for the plan. Each year such record keeper reported to the Company that such nondiscrimination tests had been satisfied. However, in August 1996 the 401(k) Plan's record keeper advised the Company that certain of these tests had been performed incorrectly for prior years and, in fact, that the 401(k) Plan had failed certain tests for the 1993, 1994 and 1995 plan years. The Company has subsequently determined that the 401(k) Plan also failed a nondiscrimination test for 1991 and 1992, closed years for tax purposes. At the time the Company received such notice, the period in which the Company could voluntarily "cure" this operational defect had lapsed for all such years, except 1995. With respect to the 1995 year, the Company has caused the 401(k) Plan to refund the required excess contributions and earnings thereon to affected highly compensated participants, and the Company will pay an excise tax of approximately $51,000. Because the 401(k) Plan is under a current IRS audit, the IRS voluntary correction program for this type of operational defect is not available to the Company for years prior to 1995. Accordingly, the Company informed the IRS of the prior testing errors for each of 1991, 1992, 1993 and 1994 and proposed a correction that consists of corrective contributions by the Company to the 401(k) Plan with respect to these years (including the closed years) and the payment by the Company of the minimum penalty ($1,000) that the IRS is authorized to accept to resolve this issue. The IRS Houston District indicated that resolution of the nondiscrimination test failures is premature until the National Office resolves the issues presented in the Technical Advice Request. No assurance can be given that the IRS will permit the Company to administratively "cure" this operational defect. The Company has recorded a reserve during the third quarter of 1996 for amounts it may ultimately be required to pay in connection with corrective action with respect to the 401(k) Plan. The amount of such reserve is the Company's estimate of the cost of corrective measures and penalties, although no assurance can be given that the actual amount that the Company may ultimately be required to pay will not substantially exceed the amount so reserved. In addition, the Company has recorded an asset for an amount recoverable from the 401(k) Plan's record keeper should the Company ultimately be required to pay the amount accrued for such corrective measures and penalties. Based on its understanding of the settlement experience of other companies with respect to similar issues, the Company does not believe that the ultimate resolution of the nondiscrimination test issue will have a material adverse effect on the Company's financial condition or results of operations, although no assurance can be given by the Company because the ultimate resolution of this issue will be determined in a negotiation process 46 49 with the IRS or in litigation. See footnote 4 of the Notes to the Company's consolidated financial statements included elsewhere in this Prospectus. ERISA Requirements. Employee pension and welfare benefit plans are also governed by ERISA. ERISA defines "employer" as "any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan." ERISA defines the term "employee" as "any individual employed by an employer." The United States Supreme Court has held that the common law test of employment must be applied to determine whether an individual is an employee or an independent contractor under ERISA. A definitive judicial interpretation of "employer" in the context of a PEO or employee leasing arrangement has not been established. If the Company were found not to be an employer for ERISA purposes, its plans would not comply with ERISA. Further, as a result of such finding the Company and its plans would not enjoy, with respect to worksite employees, the preemption of state laws provided by ERISA and could be subject to varying state laws and regulations, as well as to claims based upon state common laws. Even if such a finding were made, however, the Company believes it would not be materially adversely affected because it could continue to make available similar benefits at comparable costs. In addition to ERISA and the Code provisions discussed herein, issues related to the relationship between the Company and its worksite employees may also arise under other federal laws, including other federal income tax laws. Possible Multiple Employer Plan Treatment. The U.S. Department of Labor ("DOL") issued an Advisory Opinion in December 1995 to a staff leasing company advising that particular company that its health plan, which covered worksite employees, was a multiple employer plan, rather than a single employer plan. Because the Company believes it is a co-employer of worksite employees, the Company views its group health plan, which also covers worksite employees, to be a single employer plan. However, if this DOL opinion were applied to the Company, it is possible, although the Company believes it is unlikely, that the DOL would assert penalties against the Company for having incorrectly filed annual reports treating its plan as a single employer plan. Such a conclusion, if applied to the other employee benefit plans that cover worksite employees, could result in additional liabilities of the Company. The Company does not believe that any such penalties will, individually or in the aggregate, be material to the Company's financial condition or results of operation. Further, even if such a conclusion is reached, however, the Company believes that it would continue to be able to make available comparable benefit programs to client companies. FEDERAL EMPLOYMENT TAXES As a co-employer, the Company assumes responsibility and liability for the payment of federal and state employment taxes with respect to wages and salaries paid to worksite employees. There are essentially three types of federal employment tax obligations: (i) withholding of income tax requirements governed by Code Section 3401, et seq.; (ii) obligations under FICA, governed by Code Section 3101, et seq.; and (iii) obligations under the FUTA, governed by Code Section 3301, et seq. Under these Code sections, employers have the obligation to withhold and remit the employer portion and, where applicable, the employee portion of these taxes. The Market Segment Group discussed above is examining, among other issues, whether PEOs, such as the Company, are employers of worksite employees under the Code provisions applicable to federal employment taxes and, consequently, responsible for payment of employment taxes on wages and salaries paid to such worksite employees. However, the IRS Houston District has concluded that the Company is not the employer of worksite employees for this purpose and has requested National Office guidance on this issue in the Technical Advice Request described above. Code Section 3401, which applies to federal income tax withholding requirements, contains an exception to the general common law test applied to determine whether an entity is an "employer" for purposes of federal income tax withholding. Section 3401(d)(1) states that if the person for whom services are rendered does not have control of the payment of wages, the "employer" for this purpose is the person having control of 47 50 the payment of wages. The Treasury regulations issued under Section 3401(d)(1) state that a third party can be deemed to be the employer of workers under this section for income tax withholding purposes where the person for whom services are rendered does not have legal control of the payment of wages. While Section 3401(d)(1) has been examined by several courts, its ultimate scope has not been delineated. Moreover, the IRS has to date relied extensively on the common law test of employment in determining liability for failure to comply with federal income tax withholding requirements. Accordingly, while the Company believes that it can assume the withholding obligations for worksite employees, in the event the Company fails to meet these obligations the client company may be held jointly and severally liable therefor. While this interpretive issue has not to the Company's knowledge discouraged clients from enrolling with the Company, there can be no assurance that a definitive adverse resolution of this issue would not do so in the future. These interpretive uncertainties may also impact the Company's ability to report employment taxes on its own account rather than for the accounts of its clients. STATE REGULATION TEXAS As an employer, the Company is subject to all Texas statutes and regulations governing the employer-employee relationship. Subject to the discussion below, the Company believes that its operations are in compliance in all material respects with all applicable Texas statutes and regulations. Prior to 1993, the PEO industry was not regulated as an industry in Texas. Various state agencies attempted to apply their statutory schemes to PEOs on a case-by-case basis and the Company faced various challenges from both the Texas Employment Commission and the State Board of Insurance of Texas. Each of these challenges was resolved with the passage of Texas' PEO licensing act described below. Staff Leasing Services Licensing Act. The Company was instrumental in obtaining enactment of the Texas Staff Leasing Act, which now regulates and establishes a legal framework for PEOs in Texas. The Texas Staff Leasing Act, which became effective on September 1, 1993, established a mandatory licensing scheme for PEOs and expressly recognizes a licensee as the employer of the assigned employee for purposes of the Texas Unemployment Compensation Act. The Texas Staff Leasing Act also provides, to the extent governed by Texas law, that a licensee may sponsor and maintain employee benefit plans for the benefit of assigned employees. In addition, the Texas Staff Leasing Act not only provides that a licensee may elect to obtain workers' compensation insurance coverage for its assigned employees but also provides that, for workers' compensation insurance purposes, a licensee and its client company are treated as co-employers. After February 28, 1994, it became a class A misdemeanor to engage in PEO activities in Texas without a license issued pursuant to the Texas Staff Licensing Act. In order to obtain a license, applicants must undergo a background check, demonstrate a history of good standing with tax authorities and meet certain capitalization requirements that increase with the number of worksite employees employed. The Texas Staff Leasing Act specifies that the Texas Department of Licensing and Regulation ("TDLR") is responsible for enforcement of the Texas Staff Leasing Act and TDLR has adopted regulations under the Texas Staff Leasing Act. The Company believes that it is in compliance with such regulations in all material respects. OTHER STATE REGULATION While many states do not explicitly regulate PEOs, 16 states have passed laws that have licensing or registration requirements for PEOs and at least four states are considering such regulation. Such laws vary from state to state but generally provide for monitoring the fiscal responsibility of PEOs. In addition to holding a license in Texas, Administaff holds licenses in Arkansas, Florida and New Hampshire, has been registered or certified in Massachusetts, Minnesota, New Mexico and Nevada, and has applied for licenses in Montana, Oregon, South Carolina, Tennessee and Utah. Whether or not a state has licensing, registration or certification requirements, the Company faces a number of other state and local regulations that could impact its operations. The Company believes that its prior experience with Texas regulatory authorities will be valuable in surmounting regulatory obstacles or challenges it may face in the future. 48 51 MANAGEMENT The Company's Board of Directors currently has nine members. In accordance with the Certificate of Incorporation of the Company, the members of the Board of Directors are divided into three classes and are elected for a term of office expiring at the third succeeding annual stockholders' meeting following their election to office or until a successor is duly elected and qualified. The Certificate of Incorporation also provides that such classes shall be as nearly equal in number as possible. The terms of office of the Class I, Class II and Class III directors expire at the annual meeting of stockholders in 1999, 1997 and 1998, respectively. The following table sets forth certain information on the directors and executive officers of the Company as of January 3, 1997:
DIRECTOR NAME AGE POSITION CLASS - ------------------------------------------ --- ----------------------------------------- -------- Paul J. Sarvadi(1)........................ 39 President and Chief Executive Officer and II Director Gerald M. McIntosh........................ 55 Senior Vice President, Emerging Business II Services and Director James W. Hammond.......................... 58 Senior Vice President, Corporate Services I and Director Scott C. Hensel........................... 50 Senior Vice President, Benefits I Administration and Director John H. Spurgin, II....................... 50 Vice President, Legal, General Counsel and Secretary Richard G. Rawson......................... 48 Senior Vice President, Finance, Chief III Financial Officer, Treasurer and Director Linda Fayne Levinson(1)(2)(3)............. 54 Director I Paul S. Lattanzio(1)(2)(3)................ 32 Director III Stephen M. Soileau(1)(2)(3)............... 38 Director II Jack M. Fields Jr......................... 44 Director III
- --------------- (1) Member of the Nominating Committee (2) Member of the Compensation Committee (3) Member of the Audit Committee Paul J. Sarvadi. Mr. Sarvadi is President, CEO and co-founder of the Company. He attended Rice University and the University of Houston prior to starting and operating several small companies. Mr. Sarvadi has served as President of NAPEO and has been on its Board of Directors for five years. Mr. Sarvadi has also served as President of the Texas Chapter of the National Staff Leasing Association ("NSLA") for three years of the first four years of its existence. He was recently selected as Houston's Entrepreneur of the Year for service industries. Gerald M. McIntosh. Mr. McIntosh is a co-founder of the Company and serves as Senior Vice President of Emerging Business Services. Prior to founding Administaff, he was founder and President of Kingwood Trails, Inc., a planned community maintenance company and ISSCO Trading Company, an import/export firm. He also founded and sold three other private businesses. Mr. McIntosh has a Bachelor of Science degree from LaSierra University and a Master of Science degree in Public Administration from the University of Southern California. James W. Hammond. Mr. Hammond is Senior Vice President, Corporate Services. Prior to joining Administaff in 1987, Mr. Hammond was President of Technology and Business Consultants, Inc., a computer consulting firm. Mr. Hammond spent 23 years with Exxon U.S.A. designing a variety of automated systems related to operations and corporate planning. Mr. Hammond has a Bachelor of Science degree in Chemical Engineering from Virginia Polytechnic Institute. 49 52 Scott C. Hensel. Mr. Hensel, who serves as Senior Vice President, Benefits Administration, joined Administaff in 1987. Prior to joining Administaff, he spent 14 years with Exxon U.S.A., and subsequently became Vice President of Technology and Business Consultants, Inc., a computer consulting firm. Mr. Hensel has a Bachelor of Science degree in Engineering and a Bachelor of Arts degree with a minor in Political Science from Brown University and a Master of Business Administration degree in Management from Fairleigh-Dickinson University. John H. Spurgin, II. Mr. Spurgin has served as the Company's Vice President, General Counsel and Secretary of Administaff since January 2, 1997. Prior to joining the Company, Mr. Spurgin engaged in the private practice of law as a partner with a law firm headquartered in Austin, Texas. Such law firm has represented Administaff as outside counsel since 1988. Mr. Spurgin earned a J.D. (with honors) from the University of Texas School of Law in 1984. Richard G. Rawson. Mr. Rawson, who serves as Chief Financial Officer, Treasurer and Senior Vice President, Finance, joined Administaff in 1989. From 1983 to 1989 he was founder and owner of Texas Business Consultants, a financial consulting firm serving small-to-medium-sized businesses. Prior to that time, Mr. Rawson served as a senior financial officer and comptroller for several companies in the manufacturing and seismic data processing industries. Mr. Rawson served as Chairman of the Accounting Practices Committee of NAPEO for five years and currently serves as Treasurer of NAPEO and a member of its Board of Directors. Mr. Rawson has a Bachelor of Business Administration Degree in Finance and Accounting from the University of Houston. Linda Fayne Levinson. Ms. Levinson, a director of the Company since April of 1996, has served as President of Fayne Levinson Associates, an independent consulting firm located in Santa Monica, California that advises both major corporations and start-up entrepreneurial ventures, since 1994. Prior to starting Fayne Levinson Associates, Ms. Levinson served as an executive with Creative Artists Agency, Inc. in 1993, a partner of Wings Partners, Inc., a merchant banking firm, from 1989 to 1992, Senior Vice President for American Express Travel Related Services Co., Inc. from 1984 to 1987, and as a partner at the consulting firm of McKinsey & Co. from 1979 to 1981. Ms. Levinson holds a Bachelor of Arts degree in Russian Studies from Barnard College, a Master of Business Administration degree from New York University School of Business and a Master of Arts degree in Russian Literature from Harvard University. Ms. Levinson also currently serves as a Director for Genentech, Inc., Egghead Software, Inc. and Jacobs Engineering Group Inc. Paul S. Lattanzio. Mr. Lattanzio, a director of the Company since 1995, is a Managing Director with BT Capital Partners, Inc., an affiliate of Bankers Trust New York Corporation. Mr. Lattanzio joined Bankers Trust in 1984 and has experience in a variety of investment banking disciplines including mergers and acquisitions, private placements and restructuring advisory areas. Since 1987 his primary focus has been on the structuring, execution and monitoring of private equity investments for BT Capital Partners, Inc. Mr. Lattanzio received his Bachelor of Science degree in Economics with Honors from the University of Pennsylvania's Wharton School of Business in 1984. Stephen M. Soileau. Mr. Soileau joined the Company as a director in October 1996. He has been Executive Vice President of TGF Management Corp., an investment management firm, since August 1992. From July 1989 to August 1992, Mr. Soileau was Executive Vice President of Creekwood Capital Corporation, an asset financing company. He was Investment Manager of Houston Industries, Inc., a utility holding company, from December 1986 to July 1989. He has a Bachelor of Arts degree in Economics from Rice University and a Master of International Management from the American Graduate School of International Management. Mr. Soileau also currently serves as a director for Calspan/SRL Corporation, Independent Gas Company Holdings, Inc., Sovereign Business Forms Inc. and Total Safety, Inc. Jack M. Fields Jr. Mr. Fields joined the Company as a director on January 3, 1996 following his retirement from the United States House of Representatives, where he served for 16 years. During 1995 and 1996, Mr. Fields served as Chairman of the House Telecommunications and Finance Subcommittee which has jurisdiction and oversight of the Federal Communication Commission and the Securities and Exchange Commission. Mr. Fields earned a Bachelor of Arts Degree in 1974 from Baylor University, and graduated from Baylor Law School in 1977. He has also served as a Trustee of Baylor University. 50 53 Mr. Lattanzio and Mr. Soileau were elected to the Board of Directors pursuant to a voting agreement executed in connection with a financing completed in May of 1994. See "-- Related Party Transactions." Following this offering, an affiliate of BT Capital Partners, Inc. will retain the ability to hold a seat on the Board of Directors until its ownership of Common Stock represents less than 4% of the outstanding Common Stock or has a market value of less than $10 million. All directors hold office until their successors have been elected and qualified. Officers serve at the discretion of the Board of Directors. The Company's Bylaws provide that directors and officers be indemnified against liabilities arising from their service as directors or officers to the fullest extent permitted by law, which generally requires that the individual act in good faith and in a manner he or she reasonably believes to be in or not opposed to the Company's best interests. See "Description of Capital Stock -- Limitation on Directors and Officers Liability." BOARD COMMITTEES The Board of Directors has appointed an Audit Committee, a Compensation Committee and a Nominating Committee. The membership of such committees is indicated by the footnotes to the table above. The Audit Committee reviews the scope and results of the annual audit of the Company's consolidated financial statements conducted by the Company's independent accountants, the scope of other services provided by the Company's independent accountants, proposed changes in the Company's financial and accounting standards and principles, and the Company's policies and procedures with respect to its internal accounting, auditing and financial controls, and makes recommendations to the Board of Directors on the engagement of the independent accountants, as well as other matters which may come before it or as directed by the Board of Directors. The Compensation Committee administers the Company's compensation programs, including the Stock Option Plan, and performs such other duties as may from time to time be determined by the Board of Directors. The Nominating Committee considers and makes recommendations to the Board of Directors regarding persons to be nominated by the Board of Directors for election as directors. BOARD COMPENSATION Non-employee directors of the Company receive compensation consisting of (i) $10,000 annually, (ii) a fee of $2,500 for each quarterly meeting of the Board attended, (iii) an annual fee of $1,000 payable for each committee of the Board (if any) of which such person is the chairman and (iv) reimbursement of reasonable expenses incurred in serving as a director. The annual compensation can be taken in cash or Common Stock, at the Director's option. In addition, pursuant to the Company's stock option plan each director of the Company who is neither an employee of the Company or an employee, director, officer, partner, principal or affiliate of Texas Growth Fund, Pyramid Ventures, Inc. or any of their respective control persons automatically receives on the date such person first becomes a director a grant of non-qualified options to purchase 7,500 shares of Common Stock, which will vest one-third on each anniversary of the date of grant. In addition, following each annual meeting of the Company's stockholders, each such outside director will receive an annual grant of options to purchase an additional 2,500 shares of Common Stock, all of which are fully vested on the date of grant. The exercise price of all such options is the fair market value at the time the options are granted. Options to purchase a total of 7,500 shares of Common Stock have been granted under such arrangement to each of Ms. Levinson and Mr. Fields. Directors who are employees of the Company or affiliates of Texas Growth Fund or Pyramid Ventures, Inc. receive no compensation for their services as directors. EMPLOYMENT AND CONSULTING AGREEMENTS The Company and John H. Spurgin, II have entered into an employment agreement pursuant to which the Company has agreed to employ Mr. Spurgin as the Company's Vice President, Legal and General Counsel for an initial term ending December 31, 1999. Pursuant to such agreement, Mr. Spurgin (a) will (i) be paid a base annual salary of $157,500 during 1997, $180,000 during 1998 and no less than $180,000 during 1999; (ii) participate in the Company's bonus plan, consistent with the other members of the Company's management team; and (iii) be entitled to an allowance of up to approximately $20,000 toward the purchase of an automobile; (b) received an option to purchase 10,000 shares of Common Stock exercisable for $13.50 51 54 per share, which option was issued under the Company's Stock Option Plan (described below); (c) will participate in the Company's employee benefit plans; and (d) agrees not to compete with the Company for a period of 24 months following termination of his employment. None of the Company's other executive officers have employment or consulting agreements with the Company. COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION The Compensation Committee of the Board of Directors was formed in February of 1995, and currently consists of Linda Fayne Levinson, Paul S. Lattanzio and Stephen M. Soileau. Prior to the formation of the Compensation Committee, compensation decisions were made and approved by the Company's Board of Directors. EXECUTIVE COMPENSATION The following table sets forth in summary form all compensation paid by the Company to the Chief Executive Officer and its other five most highly compensated executive officers (collectively, the "Named Executive Officers") for services rendered in all capacities to the Company for the year ended December 31, 1996: SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION NAME AND ----------------------------- ALL OTHER PRINCIPAL POSITION YEAR SALARY($) BONUS($) COMPENSATION(1) ------------------------------------------ ---- --------- -------- --------------- Paul J. Sarvadi, President and Chief Executive Officer....................... 1996 $ 206,674 $ -- $ 660 Gerald M. McIntosh, Senior Vice President............................... 1996 206,804 -- 4,500 William E. Lange, Senior Vice President(2)............................ 1996 206,654 -- 2,880 James W. Hammond, Senior Vice President... 1996 206,654 -- 4,500 Scott C. Hensel, Senior Vice President.... 1996 206,754 -- 2,880 Richard G. Rawson, Senior Vice President and Chief Financial Officer............. 1996 206,753 88,351 1,740
- --------------- (1) Represents the Company's payments with respect to life insurance policies benefitting the named executive. Excludes perquisites and other personal benefits, because such compensation did not exceed the lesser of $50,000 or 10% of the total annual salary reported for each executive officer. (2) Mr. Lange resigned as an officer, director and employee of the Company effective December 31, 1996. STOCK OPTION PLAN In April 1995, the Company established the 1995 Administaff Employee Stock Option Plan. At the annual meeting of the Company's stockholders held in April 1996, the Company's stockholders approved an amendment and restatement of such plan to provide for automatic grants of options to non-employee directors (the plan, as so amended and restated is referred to as the "Stock Option Plan"). Pursuant to the Stock Option Plan options may be granted to eligible employees and non-employee directors of the Company or its subsidiaries for the purchase of an aggregate of 357,957 shares of Common Stock of the Company. As of January 3, 1997, options to purchase 4,401 shares remain eligible for issuance pursuant to the Stock Option Plan. Stock options granted to employees under the Stock Option Plan are intended to qualify as "incentive stock options" within the meaning of Section 422 of the Code. The purpose of the Stock Option Plan is to further the growth and development of the Company and its subsidiaries by providing, through ownership of stock of the Company, an incentive to employees of the Company and its subsidiaries to increase such persons' interests in the Company's welfare and to encourage them to continue their services to the Company and its subsidiaries. 52 55 In addition, the Stock Option Plan authorizes grants of nonqualified options to directors of the Company, other than any director who is also an employee of the Company or an affiliate or an employee, director, officer or principal of The Texas Growth Fund, Pyramid Ventures, Inc. or any of their respective controlling persons. Each qualifying non-employee director will receive options to purchase 7,500 shares of Common Stock on the date first elected or appointed to the Board and an additional grant of options to purchase 2,500 shares of Common Stock as of each annual meeting of stockholders on which the director continues to serve on the Board. On April 23, 1996 (the date the Company's stockholders approved the amendment and restatement referred to above), Ms. Levinson received options to purchase a total of 7,500 shares of Common Stock, and on January 3, 1997 Mr. Fields received options to purchase a total of 7,500 shares of Common Stock. The exercise price for these director options will be the fair market value of the stock on the date of grant and each option will have a term of 10 years. The 7,500 share option grants will vest as to one-third of the shares on each anniversary of the option's grant date, while the 2,500 share option grants will be fully vested when granted. In addition, the options cannot be exercised after the third anniversary of the date the director ceases to be a member of the Board. The purpose of such grants to non-employee directors is to provide a means whereby such persons may develop a source of proprietorship and personal involvement in the Company, to encourage them to devote their best efforts to the Company's success and to enhance the Company's ability to attract and retain the services of highly capable individuals to serve as directors. The Stock Option Plan is administered by the Board of Directors. The Board of Directors has the power to determine which eligible employees will receive stock option rights, the timing and manner of the grant of such rights, the exercise price, and the number of shares to be covered by and all of the terms of the options. The Board of Directors may delegate any or all of its administrative duties pertaining to the Stock Option Plan to a committee (the "Committee") of not less than three individuals, at least two of whom shall be members of the Board of Directors. Eligible employees under the Stock Option Plan are all employees, including any officer who is an employee, of the Company or any of its subsidiaries. Except for the automatic grants to non-employee directors described above, no director of the Company is eligible to receive options under the Stock Option Plan unless the granting of such options is approved by a majority of disinterested directors which comprise a majority of the Board of Directors, or by the Committee, all of whom must be disinterested directors. The term of any option granted under the Stock Option Plan shall be determined by the Board of Directors or the Committee; provided, however, that the term of any stock option cannot exceed 10 years from the date of the grant, and any stock option granted to an employee who possesses more than 10% of the total combined voting power of all classes of stock of the Company or of its subsidiaries within the meaning of Section 422(b)(6)of the Code must not be exercisable after the expiration of five years from the date of grant. The exercise price per share of Common Stock of options granted under the Stock Option Plan will be the fair market value of a share of Common Stock on the date the option is granted, determined in good faith by the Board of Directors or the Committee. Further, the exercise price of any stock option granted to an employee who possesses more than 10% of the total combined voting power of all classes of stock of the Company or of its subsidiaries within the meaning of Section 422(b)(6) of the Code must be at least 110% of the fair market value of the share at the time such option is granted. The exercise price of any shares purchased pursuant to an option granted under the Stock Option Plan shall be paid in full upon exercise of such option in cash, or by check, or at the discretion of the Board of Directors or the Committee. Unless sooner terminated by action of the Board of Directors in its discretion, the Stock Option Plan will terminate on the tenth anniversary of its effective date. The Stock Option Plan was originally approved by the Board of Directors on April 24, 1995, and by the shareholders of the Company on April 25, 1995, and the amendment and restatement thereof was approved by the Board of Directors and by the Company's shareholders in April 1996. Options granted under the Stock Option Plan are not transferable except in the event of death and must be exercised by the optionee within 10 years after the date the option is granted or within three months following the date the optionee's employment with the Company terminates for any reason. The Board of Directors or the Committee, in its discretion, may set the term for any option granted under the Stock Option Plan; provided, however, that the term of the option cannot extend for a period longer than that permitted for the option to qualify as an "Incentive Stock Option" under Section 422 of the Code. 53 56 The Board of Directors and the Committee have the authority to prescribe, upon the granting of options, the vesting schedule under which such options will become exercisable by each optionee and the conditions of any such exercise, including the events or circumstances resulting in the acceleration of any vesting schedule applicable to the purchase of shares pursuant to any grant under the Stock Option Plan. The Board of Directors may at any time terminate or amend the Stock Option Plan; provided that no such amendment may adversely affect the rights of optionees with regard to outstanding options. Further, no material amendment to the Stock Option Plan, such as an increase in the total number of shares covered by the Stock Option Plan, a change in the class of persons eligible to receive options, a reduction in the exercise price of options, and extension of the latest date upon which options may be exercised, shall be effective without stockholder approval. In April 1995 the Company granted options to purchase 96,791 shares of Common Stock to certain non-executive officer employees with an exercise price of $6.00 per share, which have all vested, and in August 1995 the Company granted options to purchase 241,431 shares of Common Stock to certain non- executive employees at $13.50 per share, 20% of which vest each year for the ensuing five year period. At January 3, 1997, options to purchase 353,556 shares of Common Stock were outstanding pursuant to these grants, of which options to purchase 142,197 shares were exercisable. No options have been exercised pursuant to these grants through January 3, 1997. RELATED PARTY TRANSACTIONS On May 13, 1994, the Company completed a financing (the "Financing") whereby, in exchange for an aggregate investment of $4 million, the Company issued to TGF (i) $4 million principal amount of subordinated notes maturing five years from the date of issue carrying interest of 13% per annum, and (ii) warrants to purchase 694,436 shares of Common Stock (the "TGF Investment"). In connection with the TGF Investment, a representative of TGF became a member of the Board of Directors. Mr. Soileau is currently TGF's representative on the Company's Board of Directors. The Financing also involved the issuance by the Company of 1,532,303 shares of Common Stock to PVI at a purchase price of $2.61 per share, or an aggregate of $4 million (the "PVI Investment"). In connection with the PVI Investment, Paul S. Lattanzio, a representative of PVI, became a member of the Board of Directors of the Company. Also in connection with the PVI Investment, PVI acquired 606,667 shares of Common Stock of the Company from the following existing stockholders in the respective amounts: McIntosh Charitable Remainder Trust, 13,333 shares; the Reed Foundation, 10,000 shares; Gary F. Reed, 523,333 shares; Hammond Family Foundation, 20,000 shares; James W. Hammond, 20,000 shares; and Scott C. Hensel, 20,000 shares. James W. Hammond and Scott C. Hensel are members of the Board of Directors and the McIntosh Charitable Remainder Unit Trust and the Hammond Family Foundation are affiliates of members of the Board of Directors. At the time of the PVI Investment, Gary F. Reed was a member of the Board of Directors and the Reed Foundation was an affiliate of Mr. Reed. In connection with the PVI Investment and the TGF Investment, the Company, TGF, PVI and certain holders of Common Stock entered into an Investor Agreement (the "Investor Agreement") and a Voting Agreement (the "Voting Agreement"), each dated May 13, 1994. Pursuant to the Investor Agreement, PVI has a right of first refusal to purchase any equity securities issued by the Company other than those issued pursuant to a registered public offering, employee compensation plan or certain warrants held by TGF and Rauscher Pierce Refsnes, Inc. ("Rauscher"), or, in certain instances, those issued after repurchase by the Company. In addition, pursuant to the Voting Agreement, PVI has the right to elect at least one member of the Company's Board of Directors. Both the right of first refusal and the board seat provisions contained in the Investor Agreement and Voting Agreement, respectively, terminate if and when PVI ceases to own either (i) four percent or more of the outstanding Common Stock, on a fully diluted basis, or (ii) $10 million or more of Common Stock based on the average closing price of the Common Stock for the 30 previous trading days. In June 1995, Richard G. Rawson, Chief Financial Officer and a director of the Company, exercised options to purchase 448,667 shares of Common Stock at a price of $0.75 per share. The purchase price was 54 57 paid in cash by Mr. Rawson. In connection with the exercise of the options, the Company entered into a loan agreement with Mr. Rawson in the amount of $694,000, whereby the Company paid certain federal income tax withholding requirements related to the stock option exercise. The loan agreement called for an additional amount to be advanced to Mr. Rawson in the event the ultimate tax liability resulting from the exercise exceeds the statutory withholding requirements. In April 1996, an additional $300,000 was loaned to Mr. Rawson pursuant to this provision of the agreement. Mr. Rawson, his wife and a family limited partnership of which Mr. Rawson is the general partner (collectively, the "Obligors") are obligors of such loans. The loans are repayable in five years, accrue interest at 6.83% and are secured by 414,252 shares of Common Stock owned by the Obligors. The Company's recourse to satisfy such obligations is limited to such pledged shares of Common Stock. See "Principal and Selling Stockholders." Mr. Rawson, James W. Hammond and Scott C. Hensel, each of whom is a director, stockholder and officer of the Company, are the stockholders of Technology and Business Consultants, Inc. ("TBC"), which has in the past provided various equipment, supplies, and services to the Company. The Company paid $40,000 in 1994 for such services and equipment from TBC. In April 1996, the Company entered into a settlement agreement relating to litigation in which the Company and TBC were co-defendants. In accordance with the settlement agreement, $285,000 was paid to the plaintiff. The Company paid the entire amount of the settlement; however, TBC has agreed to reimburse the Company for the entire amount of the settlement not recovered through the Company's general liability insurance. In August 1996, the Company received $113,000 pursuant to such coverage. The remaining $172,000 was reimbursed by TBC prior to the end of 1996. In October 1996, the Company purchased various computer equipment from TBC at a total cost of $209,000. In January 1997 the Company entered into an employment agreement with John H. Spurgin, II, pursuant to which the Company agreed to employ Mr. Spurgin on the terms set forth therein as the Company's Vice President, Legal and General Counsel. For a description of such employment agreement, see "Management -- Employment and Consulting Agreements." During 1996, the Company paid $575,000 in legal fees to McGinnis, Lochridge & Kilgore, L.L.P. ("McGinnis Lochridge"), a law firm in which Mr. Spurgin served as a partner. Mr. Spurgin has resigned from McGinnis Lochridge effective January 31, 1997. BT Securities Inc., an affiliate of PVI, will participate in the underwriting syndicate for this offering and will receive customary compensation in connection with such participation. In addition, 177,585 of the shares of Common Stock owned by PVI are subject to purchase by the Underwriters to cover over-allotments. Utilizing a portion of the proceeds from the offering, the Company intends to exercise its options to repurchase (i) 348,945 shares of Common Stock from PVI for an aggregate exercise price of approximately $2.0 million, and (ii) 173,609 warrants to purchase shares of Common Stock shares of Common Stock from TGF for an aggregate exercise price of approximately $540,000. See "Use of Proceeds." 55 58 PRINCIPAL AND SELLING STOCKHOLDERS The following table sets forth certain information with respect to the beneficial ownership of the Company's Common Stock as of January 3, 1997 and as adjusted to reflect the sale of the shares of Common Stock offered hereby, by: (i) each of the Named Executive Officers, (ii) each of the Company's directors, (iii) all executive officers and directors of the Company as a group, (iv) each other person (or group of affiliated persons) who is known by the Company to own beneficially 5% or more of the Company's Common Stock and (v) each Selling Stockholder as if the Underwriters' over-allotment option is exercised in full. The shares of Common Stock to be offered by the Selling Stockholders will be offered only as part of the Underwriters' over-allotment option, and the number of shares of Common Stock being offered in, and beneficially owned after, this offering assumes that the Underwriters exercise in full such option to purchase 450,000 shares of Common Stock from the Selling Stockholders.
NUMBER OF SHARES BENEFICIALLY SHARES BEING OWNED AFTER OFFERING SHARES BENEFICIALLY OFFERED FOR AND AFTER EXERCISE OF OWNED PURCHASE OVER- ALLOTMENT PRIOR TO OFFERING(2) UNDER OVER- OPTION(2) NAME AND ADDRESS ------------------------ ALLOTMENT ---------------------- OF BENEFICIAL OWNERS(1) NUMBER PERCENT OPTION NUMBER PERCENT - ------------------------------------------------ ------- ------------ --------- ------- Executive Officers, Directors and 5% Stockholders: Paul J. Sarvadi..................... 2,179,167(3) 20.3% -- 2,179,167 16.3% Gerald M. McIntosh.................. 1,853,240(4) 17.3 68,946 1,784,294 13.3 James W. Hammond.................... 783,952(5) 7.3 57,985 725,967 5.4 Scott C. Hensel..................... 822,250(6) 7.7 30,000 792,250 5.9 Richard G. Rawson................... 841,185(7) 7.8 -- 841,185 6.3 John H. Spurgin, II................. -- -- -- -- -- Jack M. Fields Jr................... 2,000(8) * -- 2,000 * Paul S. Lattanzio................... 2,138,970(9) 19.9 177,585 1,612,440(10) 12.1 Stephen M. Soileau.................. 694,436(11) 6.1 57,655 463,172(12) 3.3 Linda F. Levinson................... -- -- -- -- -- Pyramid Ventures Inc................ 2,138,970(9) 19.9 177,585 1,612,440(10) 12.1 William E. Lange.................... 850,905(13) 7.9 -- 850,905 6.4 Texas Growth Fund -- 1991 Trust..... 694,436(14) 6.1 57,655 463,172(12) 3.3 Executive Officers and Directors as a group (10 persons)............... 10,166,105 89.0 392,171 9,251,380 66.6 Other Selling Stockholders: Pasquale Antonacci.................. 2,334 * 194 2,140 * Vincent W. Beale, Sr. .............. 13,334 * 1,107 12,227 * William Cutshall.................... 49,322(15) * 1,797 47,525 * David Dickson....................... 2,667 * 221 2,446 * Mary Ellen Feldman.................. 16,784 * 1,393 15,391 * Fleck/Sarkisian Partnership......... 16,426 * 1,364 15,062 * Carl M. Fleck Trust................. 10,000 * 830 9,170 * Rosa N. Fleck Trust................. 6,390 * 531 5,859 * Garner W. and R. Coece Menn......... 78,229 * 6,495 71,734 * Gary and Nancy Reed Foundation...... 49,948 * 2,500 47,448 * Harold L. Hailey.................... 68,129 * 5,656 62,473 * Gertrude Hazelwood and Harold Miller........................... 46,496 * 3,860 42,636 * Ironwood Investments Partnership.... 4,400 * 365 4,035 * Kenneth L. Kramer and F. B. Lacy.... 22,667 * 1,882 20,785 * William F. and Mary L. Maggert...... 7,667(16) * 554 7,113 * Rauscher Pierce Refsnes, Inc. ...... 153,230 1.4 12,722 140,508 1.0 Marvin L. and Sandra B. Roberts..... 84,944 * 7,052 77,892 * ROMSAR DB Retirement Trust.......... 99,599 * 8,269 91,330 * Thelma Slater....................... 12,483 * 1,036 11,447 *
56 59 - --------------- * Percentage of shares beneficially owned is less than 1.0%. (1) The address of all executive officers and directors is in care of the Company, 19001 Crescent Springs Drive, Kingwood, Texas 77339-3802. (2) The number of shares of Common Stock deemed outstanding prior to this offering consists of 10,726,274 shares outstanding as of January 3, 1997. This number excludes 989,863 shares issuable upon exercise of options and warrants to purchase Common Stock outstanding and exercisable as of January 3, 1997. The number of shares of Common Stock deemed outstanding after this offering includes an additional 3,000,000 shares of Common Stock being offered for sale by the Company in this offering and excludes 348,945 shares of Common Stock to be repurchased by the Company with a portion of the proceeds of this offering. Shares not outstanding but deemed beneficially owned by virtue of the right of a person or group to acquire them within 60 days are treated as outstanding only for purposes of determining the number of and percent owned by such person or group. (3) Includes 1,155,200 shares owned by Our Ship Limited Partnership, LTD., 589,000 shares owned by the Sarvadi Children Limited Partnership LTD. and 214,967 shares owned by the Sarvadi Family Foundation. (4) Includes 1,022,798 shares held in trust by David W. Russell, Trustee of the McIntosh Charitable Remainder Unit Trust, none of which will be sold in the Offering. (5) Includes 542,285 shares owned by the Hammond 1994 Family L.P., 41,667 shares owned by the Hammond Family Foundation and 120,000 shares owned by Solar Vineyard Ltd. of which 45,022 shares, 3,000 shares and 9,963 shares are subject to purchase upon exercise of the underwriters over-allotment option, respectively. (6) Represents shares owned by the Hensel Family L.P. (7) Includes 369,051 shares owned by R&D Rawson LP and 369,049 shares owned by RDKB Rawson LP. A portion of such shares are pledged as collateral to secure certain loans made by the Company to Mr. Rawson. See "Management -- Related Party Transactions." (8) Represents shares held as custodian for Jordan Fields under the Uniform Gifts to Minors Act. (9) Represents shares owned by Pyramid Ventures, Inc. The address of Pyramid Ventures, Inc. is c/o BT Capital Partners, Inc., 130 Liberty Street, 25th Floor, New York, New York 1006. (10) Reflects the repurchase of 348,945 shares of Common Stock by the Company with a portion of the proceeds of this offering. (11) Represents shares subject to warrants that are currently exercisable by the Texas Growth Fund -- 1991 Trust. Mr. Soileau disclaims beneficial ownership of the shares. (12) Reflects the repurchase of 173,609 warrants to purchase Common Stock by the Company with a portion of the proceeds of this offering. (13) Includes 442,112 shares owned of record by Jennifer W. Lange, Mr. Lange's wife. (14) Represents shares subject to warrants that are currently exercisable. If the Underwriters' over-allotment option is exercised, warrants for the requisite number of shares will be exercised to satisfy the obligation thereunder. The address of the Texas Growth Fund -- 1991 Trust is c/o TGF Management Corp., 100 Congress Avenue, Suite 980, Austin, Texas 78701. (15) Includes 27,679 shares that are owned jointly with Carol P. Cutshall, Mr. Cutshall's wife, none of which will be sold in the Offering. (16) Includes 1,000 shares owned individually by Mary L. Maggert, none of which will be sold in the Offering. 57 60 DESCRIPTION OF CAPITAL STOCK AUTHORIZED AND OUTSTANDING CAPITAL STOCK At the date hereof, the authorized capital stock of the Company is 80,000,000 shares, consisting of 60,000,000 shares of Common Stock of the Company, par value $0.01 per share ("Common Stock"), and 20,000,000 shares of Preferred Stock of the Company, par value $0.01 per share ("Preferred Stock"). The following summary is qualified in its entirety by reference to the Company's Certificate of Incorporation (the "Charter") and Bylaws (the "Bylaws"), copies of which are included as exhibits to the Registration Statement of which this Prospectus is a part. All outstanding shares of Common Stock and Preferred Stock are fully paid and non-assessable. Common Stock. The holders of Common Stock are entitled to dividends in such amounts and at such times as may be declared by the Board of Directors out of funds legally available therefor. See "Dividend Policy." Holders of the Common Stock are entitled to one vote per share for the election of directors and other corporate matters. In the event of liquidation, dissolution or winding up of the Company, holders of Common Stock would be entitled to share ratably in all assets of the Company available for distribution to the holders of Common Stock. The Common Stock carries no preemptive rights. All outstanding shares of Common Stock are, and the shares of Common Stock to be sold by the Company in this offering when issued will be, duly authorized, validly issued, fully paid and nonassessable. Preferred Stock. The Board of Directors is authorized to issue from time to time, without stockholder authorization, in one or more designated series, shares of preferred stock with such dividend, redemption, conversion and exchange provisions as are provided in the particular series. Prior to the date hereof, none of such shares have been issued. Except as by law expressly provided, or except as may be provided by resolution of the Board of Directors, the Preferred Stock shall have no right or power to vote on any question or in any proceeding or to be represented at, or to receive notice of, any meeting of stockholders of Administaff. The issuance of the Preferred Stock could have the effect of delaying or preventing a change in control of the Company. The Board of Directors has no present plans to issue any of the Preferred Stock. PROVISIONS HAVING POSSIBLE ANTI-TAKEOVER EFFECT Statutory Provisions. Section 203 ("Section 203") of the General Corporation Law of the State of Delaware (the "Delaware Act") restricts certain transactions between a corporation organized under Delaware law (or its majority-owned subsidiaries) and any person holding 15% or more of the corporation's outstanding voting stock, together with the affiliates or associates of such person (an "Interested Stockholder"). Section 203 generally prohibits a publicly held Delaware corporation from engaging in the following transactions with an Interested Stockholder, for a period of three years from the date the stockholder becomes an Interested Stockholder (unless certain conditions, described below, are met): (a) all mergers or consolidations, (b) sales, leases, exchanges or other transfers of 10% or more of the aggregate assets of the corporation, (c) issuances or transfers by the corporation of any stock of the corporation which would have the effect of increasing the Interested Stockholder's proportionate share of the stock of any class or series of the corporation, (d) any other transaction which has the effect of increasing the proportionate share of the stock of any class or series of the corporation which is owned by the Interested Stockholder, and (e) receipt by the Interested Stockholder of the benefit (except proportionately as a stockholder) of loans, advances, guarantees, pledges or other financial benefits provided by the corporation. The three-year ban does not apply if either the proposed transaction or the transaction by which the Interested Stockholder became an Interested Stockholder is approved by the board of directors of the corporation prior to the date such stockholder becomes an Interested Stockholder. Additionally, an Interested Stockholder may avoid the statutory restriction if, upon the consummation of the transaction whereby such stockholder becomes an Interested Stockholder, the stockholder owns at least 85% of the outstanding voting stock of the corporation without regard to those shares owned by the corporation's officers and directors or certain employee stock plans. Business combinations are also permitted within the three-year period if approved by the board of directors and authorized at an annual or special meeting of stockholders, by the 58 61 holders of at least 66 2/3% of the outstanding voting stock not owned by the Interested Stockholder. In addition, any transaction is exempt from the statutory ban if it is proposed at a time when the corporation has proposed, and a majority of certain continuing directors of the corporation have approved, a transaction with a party which is not an Interested Stockholder of the corporation (or who becomes such with board approval) if the proposed transaction involves (a) certain mergers or consolidations involving the corporation, (b) a sale or other transfer of over 50% of the aggregate assets of the corporation, or (c) a tender or exchange offer for 50% or more of the outstanding voting stock of the corporation. Prior to the effective date of Section 203, a corporation, by action of its board of directors, had the option of electing to exclude itself from the coverage of Section 203. Since the effective date of such section, a corporation may, at its option, exclude itself from the coverage of Section 203 by amending its Certificate of Incorporation or Bylaws by action of its stockholders to exempt itself from coverage, provided that such charter or bylaw amendment shall not become effective until 12 months after the date it is adopted. The Company has not adopted such a charter or bylaw amendment. Charter and Bylaw Provisions. The Board of Directors is divided into three classes, designated Class I, Class II and Class III. Each class of directors consists, as nearly as possible, of one-third of the total number of directors constituting the entire Board of Directors. The Charter provides that the number of directors will be fixed by, or in the manner provided in, the Bylaws. The Bylaws provide that the number of directors may be fixed from time to time by resolution of the Board of Directors, but will consist of not less than three nor more than 15 members. The term for directors in Class I expires at the annual meeting of stockholders to be held in 1999; the initial term for directors in Class II expires at the annual meeting of stockholders to be held in 1997; and the initial term for directors in Class III expires at the annual meeting of stockholders to be held in 1998. A director of the Company may be removed only for cause and only upon the affirmative vote of the holders of a majority of the outstanding capital stock entitled to vote at an election of directors. The Charter provides that the Company may, by action of its Board of Directors, adopt a rights plan. The Company does not currently have a rights plan in effect. The Charter provides that the Company may, by action of its Board of Directors, provide for a sinking fund for the purchase or redemption of shares of any series and specify the terms and conditions governing the operations of any such fund. The Company does not currently have any such fund. The Bylaws provide that the Board of Directors shall fix the number of directors and that a stockholder may nominate directors only if written notice is delivered to the Company by such stockholder not less than 30 days nor more than 60 days prior to the meeting or no later than ten days after the date of notice by the Company of such meeting if such notice is given less than 40 days in advance of the meeting. The Charter and the Bylaws also provide that any newly created directorship resulting from an increase in the number of directors or a vacancy on the Board of Directors shall be filled by vote of a majority of the remaining directors then in office, even though less than a quorum. The Bylaws also provide that special meetings of the stockholders may only be called by the Board of Directors and the holders of not less than 25% of the Company's voting stock and that the stockholders may not act by written consent. The Charter provides that these provisions of the Charter and the Bylaws may not be amended without the approval of at least 66 2/3% of the voting power of all shares of the Company entitled to vote generally in the election of directors, voting together as a single class. The foregoing provisions of the Charter and the Bylaws and of Section 203, together with the ability of the Board of Directors to issue Preferred Stock without further stockholder action, could delay or frustrate the removal of incumbent directors or the assumption of control by the holder of a large block of Common Stock even if such removal or assumption would be beneficial, in the short term, to stockholders of the Company. The provisions could also discourage or make more difficult a merger, tender offer or proxy contest even if such event would be favorable to the interests of stockholders. 59 62 LIMITATION ON DIRECTORS AND OFFICERS LIABILITY The Delaware Act authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breach of directors fiduciary duty of care. The duty of care requires that, when acting on behalf of the corporation, directors must exercise an informed business judgment based on all material information reasonably available to them. Absent the limitations authorized by such legislation, directors are accountable to corporations and their stockholders for monetary damages for conduct constituting gross negligence in the exercise of their duty of care. Although the Delaware Act does not change directors' duty of care, it enables corporations to limit available relief to equitable remedies such as injunction or rescission. The Charter limits the liability of the Company's directors to the Company or its stockholders (in their capacity as directors but not in their capacity as officers) to the fullest extent permitted by the Delaware Act. Specifically, directors of the Company will not be personally liable for monetary damages for breach of a director's fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware Act or (iv) for any transaction from which the director derived an improper personal benefit. The inclusion of this provision in the Charter may have the effect of reducing the likelihood of derivative litigation against directors and may discourage or deter stockholders or management from bringing a lawsuit against directors for breach of their duty of care, even though such an action, if successful, might otherwise have benefited the Company and its stockholders. TRANSFER AGENT The Transfer Agent for the Common Stock is KeyCorp Shareholder Services, Inc. SHARES ELIGIBLE FOR FUTURE SALE Upon completion of this offering, there will be 13,377,329 shares of Common Stock outstanding. All of the 3,000,000 shares purchased in this offering (3,450,000 shares of the Underwriters' over-allotment option is exercised if full) will be freely tradeable without registration or other restriction under the Securities Act of 1933, as amended (the "Securities Act"), except for any shares purchased by an affiliate of the Company. All of the remaining shares of Common Stock outstanding (the "Restricted Shares") may be sold only pursuant to an effective registration statement filed by the Company or pursuant to an applicable exemption, including an exemption under Rule 144 under the Securities Act. In this regard, after giving effect to the application of the proceeds from this offering as described under "Use of Proceeds," approximately 869,823 of the currently outstanding shares of Common Stock will be eligible for resale pursuant to Rule 144 after 90 days from the date of this Prospectus and the remaining 9,507,506 shares of the currently outstanding shares of Common Stock will be eligible for resale pursuant to Rule 144 after 180 days from the date of this Prospectus. In general, Rule 144 provides that if a person (including an affiliate) holds Restricted Shares (regardless of whether such person is the initial holder or a subsequent holder of such shares), and if at least two years have elapsed since the later of the date on which the Restricted Shares were issued or the date that they were acquired from an affiliate, then such person is entitled to sell within any three-month period a number of shares that does not exceed the greater of 1% of the then outstanding shares of Common Stock or the average weekly trading volume of such stock during the four calendar weeks preceding the sale. After Restricted Shares are held for three years, a person who is not deemed an "affiliate" of the Company would be entitled to sell such shares under Rule 144 without regard to the volume limitations described above. PVI, the holder of 2,138,970 shares of Common Stock (the "PVI Shares"), TGF, the holder of warrants to purchase 694,436 shares of Common Stock (the "TGF Warrants"), and Rauscher, the holder of warrants to purchase 153,230 shares of Common Stock, have certain rights to require the Company to register sales of such shares, or shares acquired pursuant to such warrants, under the Securities Act, subject to certain restrictions. If, subsequent to the consummation of this offering, the Company proposes to register any of its securities under the Securities Act, such holders are entitled to notice of such registration and to include their 60 63 shares in such registration with their expenses borne by the Company, subject to the right of an underwriter participating in the offering to limit the number of shares included in such registration. In addition, PVI and TGF have the right to demand, on five occasions, that the Company file a registration statement covering sales of their respective shares, and the Company is obligated to pay the expenses of the first two of such registrations. Upon completion of the offering, the Company plans to use a portion of the proceeds of the offering to exercise its option to repurchase 348,945 of the PVI Shares and its option to repurchase 173,609 of the TGF Warrants (or shares acquired upon exercise thereof). The effect, if any, that future market sales of shares or the availability of shares for sale will have on the prevailing market prices for the Common Stock cannot be predicted. Nevertheless, sales of a substantial number of shares in the public market could adversely affect prevailing market prices for the Common Stock. In addition, the Company has agreed that it will not, without the prior written consent of the representatives of the underwriters, agree to sell, contract to sell or otherwise dispose of any shares of Common Stock or other securities of the Company for a period of 180 days after the date of this Prospectus, except for the grant of stock options, or the issuance of shares upon the exercise of options granted, under the Stock Option Plan. 61 64 UNDERWRITERS Under the terms and subject to the conditions contained in an Underwriting Agreement dated the date hereof (the "Underwriting Agreement"), each of the Underwriters named below, for whom Morgan Stanley & Co. Incorporated and Donaldson, Lufkin & Jenrette Securities Corporation are serving as Managers, has severally agreed to purchase, and the Company has agreed to sell to each of the Underwriters, the respective number of shares of Common Stock set forth opposite the names of such Underwriters below:
NUMBER OF UNDERWRITER SHARES -------------------------------------------------------------------------- --------- Morgan Stanley & Co. Incorporated Donaldson, Lufkin & Jenrette Securities Corporation --------- Total........................................................... 3,000,000 =========
The Underwriting Agreement provides that the obligations of the several Underwriters to pay for and accept delivery of the shares of Common Stock offered hereby are subject to the approval of certain legal matters by their counsel and to certain other conditions. The Underwriters are committed to take and pay for all of the shares of Common Stock offered hereby (other than those shares covered by the over-allotment option described below) if any such shares are taken. The Underwriters initially propose to offer part of the Common Stock directly to the public at the public offering price set forth on the cover page hereof and to certain dealers at a price that represents a concession not in excess of $ per share under the public offering price. Any Underwriter may allow, and such dealers may reallow, a concession not in excess of $ a share to other Underwriters or to certain dealers. After the initial offering of the shares of Common Stock, the offering price and other selling terms may from time to time be varied by the Underwriters. The Selling Stockholders have granted the Underwriters an option, exercisable for 30 days from the date of this Prospectus, to purchase up to an additional 450,000 shares of Common Stock at the public offering price set forth on the cover page hereof, less underwriting discounts and commissions. The Underwriters may exercise such option to purchase solely for the purpose of covering over-allotments, if any, incurred in the sale of the shares of Common Stock offered hereby. To the extent such option is exercised, each Underwriter will become obligated, subject to certain conditions, to purchase approximately the same percentage of such additional shares as the number set forth next to such Underwriter's name in the preceding table bears to the total number of shares of Common Stock offered by the Underwriters hereby. The Underwriters have informed the Company that they do not intend sales to discretionary accounts to exceed five percent of the total number of shares of Common Stock offered by them. The Company and the executive officers and directors of the Company and certain other stockholders have agreed that, without the prior written consent of Morgan Stanley & Co. Incorporated, they will not offer, sell, contract to sell or otherwise dispose of any shares of Common Stock or any securities convertible into or 62 65 exercisable or exchangeable for Common Stock, for a period of 180 days after the date of this Prospectus, other than the shares of Common Stock offered hereby. See "Shares Eligible for Future Sale." Prior to the offering of Common Stock hereby, there has been no public market for the Common Stock. The initial public offering price has been determined by negotiations between the Company and the Underwriters. Among the factors considered in determining the initial public offering price were the future prospects of the Company and its industry in general, sales, earnings and certain other financial and operating information of the Company in recent periods, and the price-earnings ratios, price-sales ratios, market prices of securities and certain financial and operating information of companies engaged in activities similar to those of the Company. The NYSE has approved the Common Stock for listing, subject to official notice of issuance, under the symbol "ASF." In order to meet one of the requirements for listing the Common Stock on the NYSE, the Underwriters have undertaken to sell lots of 100 or more shares to a minimum of 2,000 beneficial holders. The Company and the Selling Stockholders have agreed to indemnify the Underwriters against certain liabilities, including civil liabilities under the Securities Act. BT Securities Inc., an affiliate of PVI, will participate in the underwriting syndicate for this offering and will receive customary compensation in connection with such participation. PVI beneficially owns more than 10% of the Company's Common Stock. Under the provisions of Rule 2720 of the Conduct Rules of the National Association of Securities Dealers ("Rule 2720"), when an NASD member such as BT Securities Inc. distributes securities of a company in which it and its affiliates own more than 10% of such company's common stock, the public offering price of the common stock can be no higher than that recommended by a "qualified independent underwriter," as such term is defined in Rule 2720. In accordance with such requirements, Morgan Stanley & Co. Incorporated has agreed to serve as a "qualified independent underwriter" and has conducted due diligence and will recommend a maximum price for the shares of Common Stock to be sold in this offering. LEGAL MATTERS Certain legal matters in connection with the Common Stock being offered hereby will be passed upon for the Company by Andrews & Kurth L.L.P., Houston, Texas and for the Underwriters by Fulbright & Jaworski L.L.P., Houston, Texas. EXPERTS The consolidated financial statements of Administaff, Inc. at December 31, 1994 and 1995, and for each of the three years in the period ended December 31, 1995, appearing in this Prospectus and Registration Statement have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon appearing elsewhere herein and in the Registration Statement, and are included in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. 63 66 ADMINISTAFF, INC. INDEX TO CONSOLIDATED FINANCIAL STATEMENTS Report of Independent Auditors......................................................... F-2 Consolidated Balance Sheets as of December 31, 1994 and 1995........................... F-3 Consolidated Statements of Operations for the years ended December 31, 1993, 1994 and 1995................................................................................. F-4 Consolidated Statements of Stockholders' Equity for the years ended December 31, 1993, 1994 and 1995........................................................................ F-5 Consolidated Statements of Cash Flows for the years ended December 31, 1993, 1994 and 1995................................................................................. F-6 Notes to Consolidated Financial Statements............................................. F-7 Consolidated Balance Sheets as of December 31, 1995 and September 30, 1996 (unaudited).......................................................................... F-18 Consolidated Statements of Operations for the nine months ended September 30, 1995 and 1996 (unaudited)..................................................................... F-19 Consolidated Statement of Stockholders' Equity for the nine months ended September 30, 1996 (unaudited)..................................................................... F-20 Consolidated Statements of Cash Flows for the nine months ended September 30, 1995 and 1996 (unaudited)..................................................................... F-21 Notes to Consolidated Financial Statements (unaudited)................................. F-22
F-1 67 REPORT OF INDEPENDENT AUDITORS Board of Directors Administaff, Inc. We have audited the accompanying consolidated balance sheets of Administaff, Inc., as of December 31, 1994 and 1995, and the related consolidated statements of operations, stockholders' equity, and cash flows for each of the three years in the period ended December 31, 1995. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of Administaff, Inc., at December 31, 1994 and 1995, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 1995 in conformity with generally accepted accounting principles. ERNST & YOUNG LLP Houston, Texas March 1, 1996 F-2 68 ADMINISTAFF, INC. CONSOLIDATED BALANCE SHEETS (IN THOUSANDS) ASSETS
DECEMBER 31, ------------------- 1994 1995 ------- ------- Current assets: Cash and cash equivalents........................................................ $11,535 $ 6,460 Cash and cash equivalents -- restricted.......................................... 697 -- Marketable securities............................................................ 4,753 728 Accounts receivable: Trade.......................................................................... 2,482 2,908 Unbilled receivables........................................................... 7,647 10,763 Related parties................................................................ 249 720 Other.......................................................................... 1,126 379 Workers' compensation deposits................................................... 3,814 1,038 Prepaid expenses................................................................. 518 2,980 Refundable income taxes.......................................................... -- 2,204 Deferred income taxes............................................................ 855 58 ------- ------- Total current assets...................................................... 33,676 28,238 Property and equipment: Land............................................................................. 786 817 Buildings and improvements....................................................... 2,850 2,915 Computer equipment............................................................... 1,322 2,163 Furniture and fixtures........................................................... 1,100 2,093 Vehicles......................................................................... 514 705 Construction in progress......................................................... 48 2,444 ------- ------- 6,620 11,137 Accumulated depreciation......................................................... (1,262) (2,008) ------- ------- Total property and equipment.............................................. 5,358 9,129 Other assets: Notes receivable from employees.................................................. -- 835 Deferred financing costs, net of accumulated amortization of $67 and $176 at December 31, 1994 and 1995..................................................... 440 430 Intangible assets, net of accumulated amortization of $172 and $319 at December 31, 1994 and 1995.............................................................. 137 599 Other assets..................................................................... 134 243 Deferred income taxes............................................................ 1,336 -- ------- ------- Total other assets........................................................ 2,047 2,107 ------- ------- Total assets.............................................................. $41,081 $39,474 ======== ======== LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable................................................................. $ 749 $ 1,487 Payroll taxes and other payroll deductions payable............................... 10,202 9,829 Accrued worksite employee payroll expense........................................ 7,692 10,094 Accrued workers' compensation claims............................................. 2,338 404 Other accrued liabilities........................................................ 1,631 1,613 Income taxes payable............................................................. 1,939 -- Current maturities of long-term debt............................................. 328 74 ------- ------- Total current liabilities................................................. 24,879 23,501 Noncurrent liabilities: Accrued workers' compensation claims............................................. 3,467 621 Long-term debt................................................................... 4,679 4,605 Deferred income taxes............................................................ -- 58 ------- ------- Total noncurrent liabilities.............................................. 8,146 5,284 Commitments and contingencies Stockholders' equity: Preferred stock, par value $0.01 per share Shares authorized -- 20,000 Shares issued and outstanding -- none.......................................... -- -- Common stock, $0.01 par value Shares authorized -- 60,000 Shares issued and outstanding -- 10,238 and 10,726 at December 31, 1994 and 1995........................................................................... 102 107 Additional paid-in capital....................................................... 4,194 5,706 Retained earnings................................................................ 3,760 4,876 ------- ------- Total stockholders' equity................................................ 8,056 10,689 ------- ------- Total liabilities and stockholders' equity................................ $41,081 $39,474 ======== ========
See accompanying notes. F-3 69 ADMINISTAFF, INC. CONSOLIDATED STATEMENTS OF OPERATIONS (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
YEAR ENDED DECEMBER 31, ---------------------------------- 1993 1994 1995 -------- -------- -------- Revenues.................................................... $496,058 $564,459 $716,210 Direct costs: Salaries and wages of worksite employees.................. 397,662 453,750 582,893 Benefits and payroll taxes................................ 78,614 85,513 104,444 -------- -------- -------- Gross profit................................................ 19,782 25,196 28,873 Operating expenses: Salaries, wages and payroll taxes......................... 6,136 8,094 10,951 General and administrative expenses....................... 5,571 5,648 7,597 Commissions............................................... 2,975 3,231 3,942 Advertising............................................... 1,612 1,797 3,268 Depreciation and amortization............................. 361 567 894 -------- -------- -------- 16,655 19,337 26,652 -------- -------- -------- Operating income............................................ 3,127 5,859 2,221 Other income (expense): Interest income........................................... 320 449 668 Interest expense.......................................... (117) (424) (713) Other, net................................................ (27) 33 9 -------- -------- -------- 176 58 (36) -------- -------- -------- Income before income tax expense............................ 3,303 5,917 2,185 Income tax expense.......................................... 1,354 2,151 1,069 -------- -------- -------- Net income.................................................. $ 1,949 $ 3,766 $ 1,116 ======== ======== ======== Net income per share of common stock........................ $ 0.22 $ 0.37 $ 0.10 ======== ======== ======== Weighted average common shares outstanding.................. 8,848 10,347 10,817 ======== ======== ========
See accompanying notes. F-4 70 ADMINISTAFF, INC. CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (IN THOUSANDS)
PREFERRED STOCK COMMON STOCK OUTSTANDING OUTSTANDING ADDITIONAL RETAINED ---------------- ---------------- PAID-IN EARNINGS SHARES AMOUNT SHARES AMOUNT CAPITAL (DEFICIT) TOTAL ------ ------ ------ ------ ---------- -------- ------- Balance at December 31, 1992........................ 1 $ 98 8,668 $ 87 $ 390 $ (1,945) $(1,370) Sale of common stock........ -- -- 27 -- 40 -- 40 Redemption and repurchase of preferred stock.......... (1) (98) 11 -- 58 (10) (50) Net income............... -- -- -- -- -- 1,949 1,949 ------ ---- ------ ---- ------ ------- ------- Balance at December 31, 1993........................ -- -- 8,706 87 488 (6) 569 Sale of common stock, net of issuance costs of $429... -- -- 1,532 15 3,556 -- 3,571 Issuance of common stock purchase warrants in connection with subordinated debt........ -- -- -- -- 150 -- 150 Net income............... -- -- -- -- -- 3,766 3,766 ------ ---- ------ ---- ------ ------- ------- Balance at December 31, 1994........................ -- -- 10,238 102 4,194 3,760 8,056 Exercise of stock options... -- -- 488 5 392 -- 397 Income tax benefit from exercise of stock options.................. -- -- -- -- 1,120 -- 1,120 Net income............... -- -- -- -- -- 1,116 1,116 ------ ---- ------ ---- ------ ------- ------- Balance at December 31, 1995........................ -- $ -- 10,726 $107 $5,706 $ 4,876 $10,689 ====== ==== ====== ==== ====== ======= =======
See accompanying notes. F-5 71 ADMINISTAFF, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (IN THOUSANDS)
YEAR ENDED DECEMBER 31, ----------------------------- 1993 1994 1995 ------- ------- ------- Cash flows from operating activities: Net income.................................................... $ 1,949 $ 3,766 $ 1,116 Adjustments to reconcile net income to net cash provided by (used in) operating activities: Depreciation and amortization................................. 361 567 1,104 Deferred income taxes......................................... 908 (1,344) 2,191 Loss on disposal of assets.................................... 30 9 2 Changes in operating assets and liabilities: Cash and cash equivalents -- restricted.................... (698) 1 697 Accounts receivable and unbilled revenues.................. (1,052) (5,054) (3,266) Workers' compensation deposits............................. (1,769) (1,986) 2,776 Prepaid expenses........................................... (225) (143) (2,462) Other assets............................................... 32 (40) (109) Accounts payable........................................... 408 (650) 738 Payroll taxes and other payroll deductions payable......... (1,887) 7,589 (373) Accrued workers' compensation claims....................... (2,116) 3,007 (4,780) Other accrued liabilities.................................. 1,530 (1,107) 2,384 Income taxes payable....................................... (99) 1,543 (3,023) ------- ------- ------- Total adjustments..................................... (4,577) 2,392 (4,121) ------- ------- ------- Net cash provided by (used in) operating activities... (2,628) 6,158 (3,005) ------- ------- ------- Cash flows from investing activities: Marketable securities: Purchases.................................................. (240) (7,333) (2,521) Dispositions............................................... -- 2,845 6,530 Purchases of property and equipment........................... (1,535) (1,768) (4,619) Increase in intangible assets................................. -- (63) (610) Proceeds from the sale of assets.............................. 116 10 15 ------- ------- ------- Net cash used in investing activities................. (1,659) (6,309) (1,205) ------- ------- ------- Cash flows from financing activities: Long-term debt: Proceeds................................................... -- 4,000 -- Repayments................................................. (465) (189) (328) Deferred financing costs................................... -- (357) (99) Loans to employees............................................ -- -- (835) Sale of common stock.......................................... 40 3,571 -- Proceeds from the exercise of stock options................... -- -- 397 Repurchase of preferred stock................................. (50) -- -- ------- ------- ------- Net cash provided by (used in) financing activities............. (475) 7,025 (865) ------- ------- ------- Net increase (decrease) in cash and cash equivalents............ (4,762) 6,874 (5,075) Cash and cash equivalents at beginning of year.................. 9,423 4,661 11,535 ------- ------- ------- Cash and cash equivalents at end of year........................ $ 4,661 $11,535 $ 6,460 ======= ======= ======= Supplemental disclosures: Cash paid for interest........................................ $ 117 $ 424 $ 787 Cash paid for income taxes.................................... $ 520 $ 1,953 $ 1,900 Noncash financing activity -- issuance of common stock purchase warrants in connection with subordinated debt borrowings................................................. $ -- $ 150 $ --
See accompanying notes. F-6 72 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS DECEMBER 31, 1995 1. ACCOUNTING POLICIES Description of Business Administaff, Inc. (the Company) is a professional employer organization (PEO) that provides a comprehensive personnel management system which encompasses a broad range of services, including benefits and payroll administration, medical and workers' compensation programs, tax filings, personnel records management, liability management, and other human resource services to small to medium sized businesses in several strategically selected markets. The Company operates primarily in the State of Texas. Principles of Consolidation The consolidated financial statements include the accounts of Administaff, Inc., and its wholly owned subsidiaries. Intercompany accounts and transactions have been eliminated in consolidation. During 1995, the Company completed a reorganization by which it formed Administaff of Delaware, Inc., (the Holding Company) as a wholly-owned subsidiary of the Company. At the same time, the Holding Company formed a wholly-owned subsidiary, Administaff of Texas, Inc. into which the Company merged. The stockholders of the Company exchanged shares of Common Stock of the Company for shares of Common Stock of the Holding Company at a ratio of 3 for 2. All outstanding warrants and stock options of the Company were exchanged for warrants and stock options of the Holding Company at the same exchange ratio. The Holding Company then changed its name to Administaff, Inc. The reorganization had no effect on net income. Share amounts in the consolidated financial statements and accompanying notes have been restated to reflect the reorganization into the Holding Company (herein referred to as the Company) and the 3-for-2 exchange. Use of Estimates The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ from those estimates. Impairment of Long-Lived Assets In March 1995, Statement of Financial Accounting Standards (SFAS) No. 121, Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of, was issued. This Statement requires impairment losses to be recorded on long-lived assets used in operations when indicators of impairment are present and the undiscounted cash flows estimated to be generated by those assets are less than the assets' carrying amount. SFAS No. 121 also addresses the accounting for long-lived assets that are expected to be disposed of. The Company will adopt SFAS No. 121 in the first quarter of 1996 and, based on current circumstances, believes there will be no effect on the consolidated financial statements from such adoption. Cash and Cash Equivalents Cash and cash equivalents include bank deposits and short-term investments with original maturities of three months or less when purchased. Cash and Cash Equivalents -- Restricted Prior to October 1995, the Company had cash equivalents which were restricted from withdrawal under the terms of a security agreement with a bank whereby the Company agreed to maintain a deposit account F-7 73 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) securing the bank's exposure to the return of client payments due to insufficient funds. At December 31, 1995, no such restrictions are in place. Marketable Securities The Company's marketable securities are classified as available-for-sale and are carried at amortized cost which approximates fair value. Unrealized gains and losses, if any, are accumulated as a separate component of stockholders' equity. Realized gains and losses are computed based on specific identification of the securities sold. Property and Equipment Property and equipment is recorded at cost. Maintenance and repairs are charged to expense as incurred; renewals and betterments are capitalized. The cost of property and equipment sold or otherwise retired and the accumulated depreciation applicable thereto are eliminated from the accounts, and the resulting profit or loss is reflected in operations. The cost of property and equipment is depreciated over the estimated useful lives of the related assets using the straight-line method. The estimated useful lives of property and equipment for purposes of computing depreciation are as follows: Buildings and improvements............................................... 7-30 years Computer equipment....................................................... 5-10 years Furniture and fixtures................................................... 3-10 years Vehicles................................................................. 5 years
Construction in progress at December 31, 1995 includes costs incurred in connection with the construction of an additional corporate facility which was completed in February 1996. Interest capitalized in connection with this project was $74,000 in 1995. PEO Service Fees and Worksite Employee Payroll Costs The Company's revenues consist of service fees paid by its clients under its Client Service Agreements. In consideration for payment of such service fees, the Company agrees to pay the following direct costs associated with the worksite employees: (i) salaries and wages, (ii) employment related taxes, (iii) employee benefit plan premiums and (iv) workers' compensation insurance premiums. The Company accounts for PEO service fees and the related direct payroll costs using the accrual method. Under the accrual method, PEO service fees relating to worksite employees with earned but unpaid wages at the end of each period are recognized as unbilled revenues and the related direct payroll costs for such wages are accrued as a liability during the period in which wages are earned by the worksite employee. Subsequent to the end of each period, such wages are paid and the related PEO service fees are billed. Unbilled receivables at December 31, 1994 and 1995 are net of prepayments received prior to year end of $1,252,000 and $661,000, respectively. Intangible Assets Intangible assets include software development costs, referral fee costs paid for the enrollment of certain clients previously with an unrelated PEO, and organizational costs. Software development costs include costs related to designing and installing the Company's computerized payroll system and are being amortized using the straight-line over a period of five years. The referral fee costs are being amortized over a period of five years, which is the expected retention period for the related clients. F-8 74 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) Certain costs incurred in the initial formation of the Company were capitalized. As of December 31, 1995, such costs were fully amortized. Accrued Workers' Compensation Claims The Company has, from time to time, been insured under various types of workers' compensation policies. These have included a retrospective rating plan, whereby monthly premiums were paid to the insurance carrier based on estimated actual losses plus an administrative fee; a high deductible paid loss plan, whereby monthly premiums were paid based on a $500,000 deductible per occurrence; and a guaranteed cost plan whereby monthly premiums are paid for complete coverage of all claims under the policy. Accrued workers' compensation claims relate to policies in place prior to November 1, 1994 and are based on an estimate of reported and unreported losses, net of amounts covered under the applicable insurance policy, for injuries occurring on or before the balance sheet date. The loss estimates are based on several factors including the Company's current experience, relative health care costs, regional influences and other factors. While estimated losses may not be paid for several years, an accrual for outstanding claims on the retrospective rating plan and high deductible paid loss plan is maintained using the estimated net present value of such claims calculated at an interest rate of 6.25%, with changes in the accrual reflected as a component of direct costs in the period of the change. These estimates are continually reviewed and any adjustments are reflected in operations as they become known. In September 1995, the Company settled the remaining outstanding claims under certain retrospective rating workers' compensation policies in effect in prior years resulting in a reduction in workers' compensation costs of $1 million in 1995. This amount is included as a reduction in Direct costs: Benefits and payroll taxes on the Consolidated Statements of Operations. In exchange for transferring the responsibility for all remaining claims under such policies, the Company paid the insurer $232,000. Prior to the settlement, the Company had accrued workers' compensation claims of approximately $1.2 million related to the settled policies. Beginning November 1, 1994, the Company has been insured under a guaranteed cost workers' compensation policy which is currently in effect through October 31, 1996. Stock Based Compensation The Company accounts for stock based compensation arrangements under the provisions of Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees," and intends to continue to do so. Advertising The Company expenses all advertising costs as incurred. Income Taxes The Company uses the liability method in accounting for income taxes. Under this method, deferred tax assets and liabilities are determined based on differences between financial reporting and income tax carrying amounts of assets and liabilities and are measured using the enacted tax rates and laws that will be in effect when the differences are expected to reverse. Per Share Information Per share amounts have been computed based on the weighted average number of common shares and common stock equivalents outstanding during the respective periods. Common stock equivalent shares consist of the incremental shares issuable upon the exercise of stock options and warrants (using the treasury stock or F-9 75 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) if-converted method where applicable). Shares for which stock options were granted within a twelve month period prior to an initial public offering are treated as outstanding for all periods presented. Therefore, shares for which options were granted subsequent to September 1994 have been considered as having been outstanding for purposes of the calculation (using the treasury stock method with the offering price used for fair market value) for all periods presented. Common stock equivalent shares from stock options and warrants granted prior to the twelve months preceding the initial public offering are excluded from computations if their effect is antidilutive. Reclassifications Certain prior year amounts have been reclassified to conform to the 1995 presentation. 2. MARKETABLE SECURITIES At December 31, 1994 and 1995, the Company's marketable securities consisted of debt securities issued by U.S. government entities and local municipalities. The balance at December 31, 1994 consisted of securities with contractual maturities of less than one year from the date of purchase. The balance at December 31, 1995 consisted of securities with contractual maturities ranging from ten years to 15 years from the date of purchase. All of the Company's marketable securities are classified as available-for-sale and are carried at amortized cost which approximates fair value. There are no unrealized holding gains or losses at December 31, 1994 and 1995. At December 31, 1994, marketable securities with a carrying value of $3,737,000 were pledged as collateral under outstanding letter of credit agreements with a bank (none at December 31, 1995). 3. LONG-TERM DEBT Following is a summary of long-term debt:
DECEMBER 31, ------------------- 1994 1995 ------ ------ (IN THOUSANDS) Subordinated notes to a related party............................ $4,000 $4,000 $610,000 note payable to bank.................................... 526 492 $350,000 note payable to bank.................................... 261 -- Mortgage note payable to developers.............................. 105 73 Mortgage note payable to bank.................................... 115 114 ------ ------ Total long-term debt............................................. 5,007 4,679 Less current maturities.......................................... (328) (74) ------ ------ Noncurrent portion............................................... $4,679 $4,605 ====== ======
In May 1994, the Company issued $4,000,000 in subordinated notes to a private investor pursuant to a Securities Purchase Agreement. The subordinated notes mature in May 1999 and contain certain optional prepayment clauses. Interest accrues at the annual rate of 13% and is payable quarterly. The subordinated notes are subordinate to the $610,000 note payable to bank. The Securities Purchase Agreement provides the Company with the right of first refusal to repurchase the subordinated notes in the event of a proposed transfer of the subordinated notes by the investor. In connection with the subordinated notes, the Company issued the investor warrants to purchase 694,436 shares of common stock. In connection with this transaction, a representative of the investor became a member of the Board of Directors of the Company. Interest expense includes $325,000 and $520,000 in 1994 and 1995, respectively, related to the subordinated notes. See Note 5. F-10 76 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) The $610,000 note is payable to the bank in monthly installments of $7,000, including interest, with a final balloon payment of all remaining principal due on December 31, 1997. Interest accrues at the bank's prime rate plus 1% (9.5% at December 31, 1995). The note is secured by land, buildings and improvements. The $350,000 note payable to bank related to land, buildings and improvements and was repaid in 1995. The mortgage note payable to developers is payable in annual installments of $41,327, including interest at 8.5%, through December 31, 1997. The note is secured by land with a cost of $218,000. The mortgage note payable to bank is payable in monthly installments of $884, including interest at 8.375%, with a final balloon payment of all remaining principal due on July 1, 2008. The note is secured by land with a cost of $160,000. The subordinated notes and the $610,000 note payable require the Company to maintain certain specified financial ratios and contain other restrictions customary in lending transactions of this type. In October 1995, the Company's wholly-owned subsidiary, Administaff of Texas, Inc. (AT), entered into a revolving credit agreement with The First National Bank of Chicago, as agent, pursuant to which the lenders that are parties thereto have agreed to advance funds to AT on a revolving basis in an amount not to exceed $10 million for general corporate purposes. Such agreement includes an agreement to issue standby letters of credit in an amount not to exceed a sublimit of $5 million. Borrowings under the agreement will bear interest at rates based on the bank's Corporate Base Rate or LIBOR plus an applicable margin at the time of borrowing. The Company is a guarantor under the agreement. The agreement requires the Company to maintain certain specified financial ratios and contains other restrictions customary in lending transactions of this type. This agreement also prohibits the declaration and payment of dividends if a default exists or, after giving effect to such dividend, would exist under such agreement. As of December 31, 1995 there is no amount outstanding under the agreement and AT has $10 million available for borrowings under the agreement. Maturities of long-term debt at December 31, 1995 are summarized as follows (in thousands): 1996................................................................. $ 74 1997................................................................. 492 1998................................................................. 2 1999................................................................. 4,002 2000................................................................. 2 Thereafter........................................................... 107 ------ $4,679 ======
F-11 77 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) 4. INCOME TAXES Deferred taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities used for financial reporting purposes and the amounts used for income tax purposes. Significant components of the net deferred tax assets and net deferred tax liabilities as reflected on the balance sheet are as follows:
DECEMBER 31, ---------------- 1994 1995 ------ ----- (IN THOUSANDS) Deferred tax liabilities: Accrual of PEO service fees and costs..................................... $ (477) $ -- Client list acquisition costs............................................. -- (133) State income taxes........................................................ -- (117) Depreciation and amortization............................................. (68) (203) ------ ----- Total deferred tax liabilities.................................... (545) (453) Deferred tax assets: Accrued workers' compensation claims...................................... 2,293 404 Other accrued liabilities................................................. 221 16 State income taxes........................................................ 188 -- Property and equipment.................................................... 34 33 ------ ----- Total deferred tax assets......................................... 2,736 453 ------ ----- Net deferred tax assets..................................................... $2,191 $ -- ====== ===== Net noncurrent deferred tax liabilities..................................... $ -- $ (58) Net current deferred tax assets............................................. 855 58 Net noncurrent deferred tax assets.......................................... 1,336 -- ------ ----- $2,191 $ -- ====== =====
At December 31, 1994 and 1995, the Company had no valuation allowance related to the deferred tax assets, primarily accrued workers' compensation claims, as these deferred tax assets relate to tax deductions available to the Company as incurred in the future for which sufficient income taxes have been paid in prior years to ensure recoverability. The components of income tax expense are as follows:
YEAR ENDED DECEMBER 31, ------------------------------ 1993 1994 1995 ------ ------- ------- (IN THOUSANDS) Current income tax expense (benefit): Federal............................................... $ 364 $ 3,013 $ (948) State................................................. 82 482 (174) ------ ------- ------- Total current income tax expense (benefit).... 446 3,495 (1,122) ------ ------- ------- Deferred income tax expense (benefit): Federal............................................... 778 (1,160) 1,902 State................................................. 130 (184) 289 ------ ------- ------- Total deferred income tax expense (benefit)... 908 (1,344) 2,191 ------ ------- ------- Total income tax expense...................... $1,354 $ 2,151 $ 1,069 ====== ======= =======
In 1995, a tax benefit of $1.1 million resulting from deductions relating to the exercise of certain non-qualified employee stock option was recorded as an increase in stockholders' equity. F-12 78 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) The reconciliation of income tax expense computed at U. S. federal statutory tax rates to the reported income tax expense is as follows:
YEAR ENDED DECEMBER 31, ---------------------------- 1993 1994 1995 ------ ------ ------ (IN THOUSANDS) Expected income tax expense at 34%........................ $1,123 $2,012 $ 743 State income taxes, net of federal benefit................ 187 135 218 Other, net................................................ 44 4 108 ------ ------ ------ Reported total income tax expense......................... $1,354 $2,151 $1,069 ====== ====== ======
5. STOCKHOLDERS' EQUITY In May 1994, the Company entered into a Stock Purchase Agreement with a private investor whereby the investor purchased 1,532,303 shares of common stock from the Company at a price of $2.61 per share. The Company realized net proceeds of $3,571,000. The Stock Purchase Agreement contains various restrictive covenants and provides the investor with certain antidilution privileges. An Investor Agreement provides the Company with the right of first refusal to repurchase the shares in the event of a proposed transfer of the shares by the investor. In addition, the Investor Agreement provides the Company with an option to repurchase up to 348,945 of the shares through June 1999 at prices beginning at $5.73 per share through June 1997 and escalating annually thereafter. See Note 11. In connection with the issuance of $4,000,000 in subordinated notes, the Company issued warrants to purchase 694,436 shares of common stock at a price of $2.61 per share to the noteholder. The Investor Agreement provides the Company with an option to repurchase 173,609 of the warrants or related shares through June 1999 at a price of $5.73 per warrant or related share less $2.61 per warrant if not yet exercised, through June 1997 and escalating annually thereafter. The holder of the subordinated notes may elect to exercise a portion or all of the warrants at the exercise price as a reduction of the outstanding balance of the subordinated notes. The warrants are exercisable through May 13, 2001 and contain certain antidilution provisions. See Note 11. The Investor Agreement also provides the holders of the shares of common stock sold pursuant to the Stock Purchase Agreement and the common stock purchase warrants issued in connection with the subordinated notes with the right, subject to certain conditions, to require the Company to repurchase all or any portion of the shares and warrants at a price to be calculated in accordance with the Investor Agreement. This right becomes partially exercisable in November 1998 and fully exercisable in November 2002 and terminates upon a qualified public offering as defined in the Stock Purchase Agreement. In connection with the Stock Purchase Agreement and the subordinated notes, the Company issued warrants to purchase 153,230 shares of common stock to a third party as partial payment of fees related to the transactions. The warrants are exercisable through June 1999 at prices commencing at $2.61 per share with annual escalations to $5.42 per share for the final year. The warrants contain certain antidilution provisions. During 1992, the Company granted options to an officer/director to purchase an additional 448,667 shares of common stock at a price of $.75 per share. These options were exercised in 1995. During 1993, the Company granted options to an employee to purchase 40,000 shares of common stock at a price of $1.50 per share. These options were exercised in 1995. There have been no outstanding warrants or options cancelled through December 31, 1995. During 1993, the Company retired all of its outstanding 10% nonvoting, convertible preferred stock. The Company paid $49,500 for 450 of the preferred shares and issued 10,600 shares of its common stock in exchange for 530 preferred shares. F-13 79 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) 6. OPERATING LEASES The Company leases various furniture, equipment, and office facilities under operating leases. Most of the leases contain purchase and/or renewal options at fair market and fair rental value, respectively. Rental expense relating to all operating leases was $638,000, $905,000 and $1,126,000 in 1993, 1994 and 1995, respectively. At December 31, 1995, future minimum rental payments under noncancelable operating leases are as follows (in thousands): 1996.............................................................. $1,023 1997.............................................................. 835 1998.............................................................. 584 1999.............................................................. 332 2000.............................................................. 151 ------ $2,925 ======
7. EMPLOYEE SAVINGS PLAN The Company has adopted a 401(k) profit sharing plan (the Plan) for the benefit of all eligible employees as defined in the plan agreement. The Plan is a defined-contribution plan to which eligible employees may make contributions, on a before-tax basis, of from 1% to 20% of their compensation during each year while they are a plan participant. Under the Plan, employee salary deferral contributions are limited to amounts established by tax laws. Participants are at all times fully vested in their salary deferral contributions to the Plan and the earnings thereon. All amounts contributed pursuant to the Plan are held in a trust and invested, pursuant to the participant's election, in one or more investment funds offered by a third party record keeper. Employees are eligible to participate in the plan on the entry date coincident with or next following age 21 and upon completion of at least 1,000 hours of service in a consecutive 12-month period. Highly compensated employees assigned to clients which have less than 100% of their workforce employed by the Company are not eligible to participate. Entry dates are the first day of each calendar month. Service with a client company is credited for eligibility and vesting purposes under the plan. Effective June 1, 1994 the plan was amended to add the option of offering matching contributions to certain worksite employees under Section 401(m) of the Internal Revenue Code (the "Code"). The Company does not make matching contributions to the plan for its corporate employees. Under this option, client companies may elect to participate in the matching program, pursuant to which the client companies contribute 50% of an employee's contributions up to 6% of the employee's compensation each pay period. Participants vest in these matching contributions on a graduated basis over five years with 20% vesting after one year of service and 100% vesting after five years of service. For employees participating in the matching program, the maximum salary deferral contribution is 17% rather than 20%. In addition, participants shall be fully vested in these matching contributions upon normal retirement (i.e., attainment of age 65) or death. Total matching contributions related to worksite employees for the year ended December 31, 1994 and 1995 were $41,000 and $420,000, respectively (none in 1993), all of which were reimbursed to the Company by the client companies. 8. RELATED PARTY TRANSACTIONS Accounts receivable from related parties at December 31, 1994 and 1995 includes $93,000 from a company in which three of the directors of the Company own a minority interest. Accounts receivable from related parties also includes $156,000 and $627,000 from employees of the Company at December 31, 1994 and 1995, respectively. F-14 80 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) Three of the Company's stockholders and officers are the stockholders of Technology and Business Consultants, Inc. ("TBC"), an entity which has provided various equipment, supplies, and services to the Company. The Company paid $754,000 and $40,000 in 1993 and 1994, respectively for such services and equipment from TBC (none in 1995). Such costs are included primarily as a component of general and administrative expenses. In June 1995, an officer of the Company exercised options to purchase 448,667 shares of common stock at a price of $0.75 per share. The purchase price was paid in cash by the officer. In connection with the exercise of the options, the Company entered into a loan agreement with the officer, whereby the Company paid certain federal income tax withholding requirements related to the stock option exercise on behalf of the officer in the amount of $694,000. The loan agreement calls for an additional amount to be advanced to the officer in the event the ultimate tax liability resulting from the exercise exceeds the statutory withholding requirements. The loan is repayable in five years, accrues interest at 6.83%, and is secured by 448,667 shares of the Company's common stock. In September 1995, an employee of the Company exercised options to purchase 40,000 shares of common stock at a price of $1.50 per share. The purchase price was paid in cash by the employee. In connection with the exercise of the options, the Company entered into a loan agreement with the employee, whereby the Company paid certain federal income tax withholding requirements related to the stock option exercise on behalf of the employee in the amount of $141,000. The loan agreements calls for an additional amount to be advanced to the employee in the event the ultimate tax liability resulting from the exercise exceeds the statutory withholding requirements. The loan is repayable in five years, accrues interest at 6.83%, and is secured by 40,000 shares of the Company's common stock. 9. COMMITMENTS AND CONTINGENCIES The Company's 401(k) Plan for the year ended December 31, 1993 is currently under audit by the Internal Revenue Service ("IRS"). The Company understands that one of the issues under review is the relationship of the Company to certain worksite employees and the Company's status as their employer for 401(k) Plan purposes. If the IRS concludes that the Company is not the "employer" of certain worksite employees for purposes of the Code, worksite employees could not continue to make salary deferral contributions to the 401(k) Plan or continue to participate in certain other employee benefit plans of the Company, including the Company's cafeteria plan. The Company believes that, although unfavorable to the Company, a prospective application of such a conclusion would not have a material adverse effect on its financial position or results of operations. If such conclusion were applied retroactively, however, employees' vested account balances would become taxable, the Company would lose its tax deduction to the extent its matching contributions were not vested, the plan's trust would become a taxable trust, and the Company could be subject to liability with respect to its failure to withhold income and payroll taxes in respect of such contributions and trust earnings thereon. In addition, the Company could be subject to liability for failure to withhold applicable taxes under certain other employee benefit plans in which worksite employees participate. In such a scenario, the Company would also face the risk of client dissatisfaction as well as potential litigation. While the ultimate outcome of the audit is unknown, the Company believes that a retroactive application is unlikely. The Company also believes that a prospective application of an unfavorable outcome will not have a material adverse effect on the Company's consolidated financial position or results of operations. The Company is a defendant in various lawsuits and claims arising in the normal course of business. Management believes it has valid defenses in these cases and is defending them vigorously. While the results of litigation cannot be predicted with certainty, management believes the final outcome of such litigation will not have a material adverse effect on the Company's consolidated financial position or results of operations. The Company had outstanding letters of credit aggregating $4,666,000 at December 31, 1994 (none at December 31, 1995). F-15 81 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) 10. EMPLOYEE STOCK OPTION PLAN In April 1995, the Company established the 1995 Administaff Employee Stock Option Plan (the "Stock Option Plan"), pursuant to which options may be granted to eligible employees of the Company or its subsidiaries for the purchase of an aggregate of 357,957 shares of Common Stock of the Company. Stock options granted under the Stock Option Plan are intended generally to qualify as "incentive stock options" within the meaning of Section 422 of the Code. The purpose of the Stock Option Plan is to further the growth and development of the Company and its subsidiaries by providing, through ownership of stock of the Company, an incentive to employees of the Company and its subsidiaries to increase such persons' interests in the Company's welfare and to encourage them to continue their services to the Company and its subsidiaries. The Stock Option Plan is administered by the Board of Directors (the "Board"). The Board has the power to determine which eligible employees will receive stock option rights, the timing and manner of the grant of such rights, the exercise price, and the number of shares to be covered by and all of the terms of the options. The Board may at any time terminate or amend the Stock Option Plan; provided that no such amendment may adversely affect the rights of optionees with regard to outstanding options. Further, no material amendment to the Stock Option Plan, such as an increase in the total number of shares covered by the Stock Option Plan, a change in the class of persons eligible to receive options, a reduction in the exercise price of options, and extension of the latest date upon which options may be exercised, shall be effective without stockholder approval. In April 1995, the Board granted options to purchase 96,791 shares of common stock at a price of $6.00 per share to certain non-management employees. In August 1995, the Board granted options to purchase 241,431 shares of common stock at a price of $13.50 per share to certain non-management employees. The April grants are primarily fully vested, except for 9,013 shares which vest in 1996. The August grants vest at 20% per year over a five year period from the date of grant. At December 31, 1995, 87,778 shares are exercisable pursuant to the April grants. Through December 31, 1995, no options have been exercised pursuant to these grants. 11. INITIAL PUBLIC OFFERING The Company filed a registration statement with the Securities and Exchange Commission ("SEC") in September 1995 to register the sale of up to 3,000,000 shares of its common stock. The Company intends to use the net proceeds of the sale to support expansion of the Company's operations including the opening of new geographic markets, further penetration of existing markets by opening new sales offices and, as opportunities arise, expansion of the Company's client base in new or existing markets through acquisitions. A portion of the proceeds will also be used to repay certain outstanding indebtedness, including the subordinated notes, and to exercise certain options to repurchase 348,945 shares of common stock and 173,609 warrants to purchase common stock. See Note 5. In connection with the preparation of consolidated financial statements to be filed with the SEC, the Company elected to restate its financial statements for certain previously reported accounting changes made in 1994 and 1993. Accordingly, the accompanying consolidated financial statements and related notes reflect this restatement. See Note 12. As of December 31, 1995, the Company remains in registration with the SEC and the timetable for completion of the proposed offering is uncertain. The Company has incurred costs totaling $745,000 through December 31, 1995 related to the offering which are included in prepaid expenses on the consolidated balance sheet. Upon consummation of the offering, such costs will be reflected as a reduction to stockholders' equity. Supplemental net income per share is $0.16 for the year ended December 31, 1995 and is determined by adding back the interest expense, net of income taxes, associated with the debt which will be retired by the proceeds of the offering to net income. The number of shares outstanding used in calculating supplemental net F-16 82 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) income per share was the weighted average common shares outstanding after giving effect to the estimated number of shares that would be required to be sold in the offering to repay the debt and to repurchase the common stock and warrants. 12. ACCOUNTING CHANGES As reflected in its previously issued financial statements for 1994, the Company changed its method of accounting for client enrollment costs and changed its method of accounting for PEO service fees and worksite employee payroll costs and in 1993 the Company changed its method of accounting for income taxes in accordance with Statement of Financial Accounting Standards ("SFAS") No. 109. In connection with the proposed initial public offering of the Company's common stock, the Company elected to retroactively restate its financial statements for these changes effective at the date of its inception. Deferred Client Enrollment Costs The Company changed its method of accounting for certain costs related to acquiring new business, including advertising, review, quotation, and enrollment expenses that vary with and are primarily related to the enrollment of new clients, from the deferral method to the expense method. Under the expense method, all such costs, including all advertising costs, are charged to expense as incurred. Previously, under the deferral method, all such costs were deferred and amortized using the straight-line method over a period of five years. The new method of accounting was adopted partially to comply with the requirements of Statement of Position 93-7 which requires all nondirect advertising costs to be expensed when incurred. Such expenses were a significant portion of the costs which were previously deferred. In addition, as the Company has grown, other enrollment costs have become less material as a component of operating expenses. As a result, the Company believes that expensing all enrollment costs will result in a more accurate matching of costs and revenues. Accrual of PEO Service Fees and Worksite Employee Payroll Costs The Company changed its method of accounting for PEO service fees and the related direct payroll costs to the accrual method. Under the accrual method, PEO service fees are recognized as unbilled revenue and the related direct payroll costs are accrued as a liability during the period in which wages are earned by the worksite employee. Previously, the Company recorded the PEO service fees and direct payroll costs in the period in which the payroll was disbursed. The new method of accounting for these fees and expenses was adopted to comply with the accrual method of accounting for revenues and expenses required by generally accepted accounting principles, for which the difference was not previously material to the financial position or results of operations of the Company. Income Taxes Effective January 1, 1993, the Company adopted SFAS No. 109, "Accounting for Income Taxes." As permitted, prior years financial statements have been restated. F-17 83 ADMINISTAFF, INC. CONSOLIDATED BALANCE SHEETS (IN THOUSANDS) (UNAUDITED) ASSETS
DECEMBER 31, SEPTEMBER 30, 1995 1996 ------------ ------------- Current assets: Cash and cash equivalents........................................ $ 6,460 $ 9,594 Marketable securities............................................ 728 -- Accounts receivable: Trade......................................................... 2,908 1,336 Unbilled receivables.......................................... 10,763 15,845 Related parties............................................... 720 614 Other......................................................... 379 270 Prepaid expenses................................................. 2,980 2,343 Workers' compensation deposits................................... 1,038 -- Refundable income taxes.......................................... 2,204 -- Deferred income taxes............................................ 58 -- ------- ------- Total current assets..................................... 28,238 30,002 Property and equipment: Land............................................................. 817 1,081 Buildings and improvements....................................... 2,915 6,262 Computer equipment............................................... 2,163 2,696 Furniture and fixtures........................................... 2,093 3,634 Vehicles......................................................... 705 723 Construction in progress......................................... 2,444 -- ------- ------- 11,137 14,396 Accumulated depreciation......................................... (2,008) (2,950) ------- ------- Total property and equipment............................. 9,129 11,446 Other assets: Notes receivable from employees.................................. 835 1,188 Deferred financing costs......................................... 430 321 Intangible assets................................................ 599 710 Other assets..................................................... 243 1,467 ------- ------- Total other assets....................................... 2,107 3,686 ------- ------- Total assets............................................. $ 39,474 $45,134 ======= ======= LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable................................................. $ 1,487 $ 1,562 Payroll taxes and other payroll deductions payable............... 9,829 5,718 Accrued worksite employee payroll expense........................ 10,094 15,644 Accrued workers' compensation claims............................. 404 43 Other accrued liabilities........................................ 1,613 1,775 Current maturities of long-term debt............................. 74 74 Income taxes payable............................................. -- 788 Deferred income taxes............................................ -- 1,095 ------- ------- Total current liabilities................................ 23,501 26,699 Noncurrent liabilities: Accrued workers' compensation claims............................. 621 -- Other accrued liabilities........................................ -- 2,558 Deferred income taxes............................................ 58 -- Long-term debt................................................... 4,605 4,574 ------- ------- Total noncurrent liabilities............................. 5,284 7,132 Commitments and contingencies Stockholders' equity: Preferred stock.................................................. -- -- Common stock..................................................... 107 107 Additional paid-in capital....................................... 5,706 5,706 Retained earnings................................................ 4,876 5,490 ------- ------- Total stockholders' equity............................... 10,689 11,303 ------- ------- Total liabilities and stockholders' equity............... $ 39,474 $45,134 ======= =======
See accompanying notes. F-18 84 ADMINISTAFF, INC. CONSOLIDATED STATEMENTS OF OPERATIONS (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) (UNAUDITED)
NINE MONTHS ENDED SEPTEMBER 30, --------------------- 1995 1996 -------- -------- Revenues............................................................... $505,619 $635,252 Direct costs: Salaries and wages of worksite employees............................. 408,379 517,820 Benefits and payroll taxes........................................... 76,964 91,307 -------- -------- Gross profit........................................................... 20,276 26,125 Operating expenses: Salaries, wages and payroll taxes.................................... 8,055 10,475 General and administrative expenses.................................. 5,497 5,937 Commissions.......................................................... 2,908 2,939 Advertising.......................................................... 2,125 2,488 Depreciation and amortization........................................ 627 1,063 -------- -------- 19,212 22,902 -------- -------- Operating income....................................................... 1,064 3,223 Other income (expense): Interest income...................................................... 487 449 Interest expense..................................................... (514) (747) Other, net........................................................... 27 (1,398) -------- -------- -- (1,696) -------- -------- Income before income taxes............................................. 1,064 1,527 Income taxes........................................................... 447 913 -------- -------- Net income............................................................. $ 617 $ 614 ======== ======== Net income per share of common stock................................... $ 0.06 $ 0.06 Weighted average common shares outstanding............................. 10,767 10,873
See accompanying notes. F-19 85 ADMINISTAFF, INC. CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY NINE MONTHS ENDED SEPTEMBER 30, 1996 (IN THOUSANDS) (UNAUDITED)
COMMON STOCK OUTSTANDING ADDITIONAL ---------------- PAID-IN RETAINED SHARES AMOUNT CAPITAL EARNINGS TOTAL ------ ------ ---------- -------- ------- Balance at December 31, 1995................... 10,726 $107 $5,706 $4,876 $10,689 Net income..................................... -- -- -- 614 614 ------ ---- ------ ------ ------- Balance at September 30, 1996.................. 10,726 $107 $5,706 $5,490 $11,303 ====== ==== ====== ====== =======
See accompanying notes. F-20 86 ADMINISTAFF, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (IN THOUSANDS) (UNAUDITED)
NINE MONTHS ENDED SEPTEMBER 30, ------------------- 1995 1996 ------- ------- Cash flows from operating activities: Net income............................................................... $ 617 $ 614 Adjustments to reconcile net income to net cash provided by (used in) operating activities: Depreciation and amortization.......................................... 778 1,231 Deferred income taxes.................................................. 2,015 1,096 Loss (gain) on disposal of assets...................................... 3 (9) Changes in operating assets and liabilities: Cash and cash equivalents -- restricted............................. 697 -- Accounts receivable and unbilled revenues........................... (1,527) (3,295) Workers' compensation deposits...................................... 2,060 1,038 Prepaid expenses.................................................... (170) 637 Other assets........................................................ (27) (1,224) Accounts payable.................................................... 488 75 Payroll taxes and other payroll deductions payable.................. (3,451) (4,111) Accrued workers' compensation claims................................ (4,132) (982) Other accrued liabilities........................................... 1,736 8,269 Income taxes payable (refundable)................................... (3,569) 2,992 ------- ------- Total adjustments.............................................. (5,099) 5,717 ------- ------- Net cash provided by (used in) operating activities............ (4,482) 6,331 ------- ------- Cash flows from investing activities: Marketable securities: Purchases.............................................................. (2,521) -- Dispositions........................................................... 6,540 728 Purchases of property and equipment...................................... (2,349) (3,372) Increase in intangible assets............................................ (579) (185) Proceeds from the sale of assets......................................... 22 19 ------- ------- Net cash provided by (used in) investing activities............ 1,113 (2,810) ------- ------- Cash flows from financing activities: Long term debt and short-term borrowings: Proceeds............................................................... -- 2,500 Repayments............................................................. (99) (2,531) Deferred financing costs............................................... -- (3) Loans to employees....................................................... (848) (353) Proceeds from the exercise of stock options.............................. 397 -- ------- ------- Net cash used in financing activities.......................... (550) (387) ------- ------- Net increase (decrease) in cash and cash equivalents..................... (3,919) 3,134 Cash and cash equivalents at beginning of period......................... 11,535 6,460 ------- ------- Cash and cash equivalents at end of period............................... $ 7,616 $ 9,594 ======= ======= Supplemental disclosures: Cash paid for interest................................................. 514 807 Cash paid (refunds received) for income taxes.......................... 2,001 (3,175)
See accompanying notes. F-21 87 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) 1. BASIS OF PRESENTATION Administaff, Inc. (the Company) is a professional employer organization (PEO) that provides a comprehensive personnel management system which encompasses a broad range of services, including benefits and payroll administration, medical and workers' compensation programs, tax filings, personnel records management, liability management, and other human resource services to small to medium sized businesses in several strategically selected markets. The consolidated financial statements include the accounts of Administaff, Inc. and its wholly owned subsidiaries. Intercompany accounts and transactions have been eliminated. During 1995, the Company completed a reorganization by which it formed Administaff of Delaware, Inc. (the Holding Company) as a wholly-owned subsidiary of the Company. At the same time, the Holding Company formed a wholly-owned subsidiary, Administaff of Texas, Inc. into which the Company merged. The stockholders of the Company exchanged shares of common stock of the Company for shares of common stock of the Holding Company at a ratio of 3-for-2. All outstanding warrants and stock options of the Company were exchanged for warrants and stock options of the Holding Company at the same exchange ratio. The Holding Company then changed its name to Administaff, Inc. The reorganization had no effect on net income. Share amounts in the consolidated financial statements and accompanying notes have been restated to reflect the 3-for-2 exchange. The Company's consolidated balance sheet at September 30, 1996 and the consolidated statements of operations, cash flows and stockholders' equity for the interim periods ended September 30, 1996 and September 30, 1995 have been prepared by the Company without audit. In the opinion of management, all adjustments, consisting only of normal recurring adjustments, necessary to present fairly the consolidated financial position, results of operations and cash flows have been made. The results of operations for the interim periods are not necessarily indicative of the operating results for a full year or of future operations. Per share amounts have been computed based on the weighted average number of common shares and common stock equivalents outstanding during the respective periods. Common stock equivalent shares consist of the incremental shares issuable upon the exercise of stock options and warrants (using the treasury stock or the if-converted method where applicable). Shares for which stock options were granted within a twelve month period prior to an initial public offering are treated as outstanding for all periods presented. Therefore, shares for which options were granted subsequent to September 1994 have been considered as having been outstanding for purposes of the calculation (using the treasury stock method with the offering price used for fair market value) for all periods presented. Common stock equivalent shares from stock options and warrants granted prior to twelve months preceding the initial public offering are excluded from computations if their effect is antidilutive. Supplemental net income per share is $0.10 for the nine months ended September 30, 1996 and is determined by adding back the interest expense, net of income taxes, associated with the debt which will be retired by the proceeds of the offering, to the net income. The number of shares outstanding used in calculating supplemental net income per share was the weighted average common shares outstanding after giving effect to the estimated number of shares that would be required to be sold in the offering to repay the debt and to repurchase the common stock and warrants. The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ from those estimates. Certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted. The accompanying F-22 88 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED) consolidated financial statements should be read in conjunction with the Company's audited consolidated financial statements for the year ended December 31, 1995. 2. LONG-TERM DEBT Following is a summary of long-term debt:
DECEMBER 31, SEPTEMBER 30, 1995 1996 ------------ ------------- (IN THOUSANDS) Subordinated notes to related party........................ $4,000 $ 4,000 $610,000 note payable to bank.............................. 492 462 Mortgage note payable to developers........................ 73 73 Mortgage note payable to bank.............................. 114 113 ------ ------ Total long-term debt....................................... 4,679 4,648 Less current maturities.................................... (74) (74) ------ ------ Noncurrent portion......................................... $4,605 $ 4,574 ====== ======
The subordinated notes and the $610,000 note payable require the Company to maintain certain specified financial requirements and contain other restrictions customary in lending transactions of this type. The Company has obtained a waiver of the quick ratio covenant in both agreements (a requirement covering two consecutive quarters) for the two quarters ended September 30, 1996. This waiver cures any noncompliance with the covenant as of September 30, 1996. In October 1995 the Company's wholly-owned subsidiary, Administaff of Texas, Inc. (Administaff of Texas), entered into a $10 million revolving credit agreement (Credit Agreement) with a bank. Such Credit Agreement includes an agreement to issue standby letters of credit in an amount not to exceed a sublimit of $5 million. The Company is a guarantor under the Credit Agreement. The Credit Agreement requires the Company to maintain certain specified financial ratios and contains other restrictions customary in lending transactions of this type. The Credit Agreement also prohibits the declaration and payment of dividends if a default exists or, after giving effect to such dividend, would exist under such agreement. As of September 30, 1996 the Company has no borrowings outstanding under the agreement and has $10 million available for borrowings under the agreement. 3. INCOME TAXES Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities used for financial reporting purposes and the amounts used for income tax purposes. The items resulting in deferred tax assets and liabilities include accrued workers' compensation claims, depreciation and amortization, state income taxes, client list acquisition costs, allowance for uncollectible accounts receivable, net operating loss carryforwards and other accrued liabilities. In January and May 1996, the Internal Revenue Service approved the Company's request for a change in the method of accounting for PEO service fees and worksite employee payroll costs to the accrual method for income tax purposes. These changes were adopted for financial reporting purposes effective January 1, 1994. For PEO service fees the change was approved effective January 1, 1995 with a three year phase in period for the cumulative effect of the change. For worksite employee payroll costs, the change was approved effective January 1, 1995 with a one year phase in period for the cumulative effect of the change. As a result, the Company amended its 1995 consolidated federal income tax return to account for these changes. The Company received refunds totaling $3.5 million in May and July 1996 resulting from the original and amended federal income tax returns. Deferred income taxes at September 30, 1996 includes the effect of the three year F-23 89 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED) phase in for the cumulative effect of the change in accounting for PEO service fees as a component of net current and noncurrent deferred income taxes. The Company's provision for income taxes, which includes the effects of the non-recurring charge for 401(k) Plan issues, differs from the U.S. statutory rate of 34% due primarily to certain portions of such non-recurring charge being non-deductible for income tax purposes. In addition, the Company's provision for income taxes differs from the U.S. statutory rate due to state income taxes. 4. COMMITMENTS AND CONTINGENCIES The Company is a defendant in various lawsuits and claims arising in the normal course of business. Management believes it has valid defenses in these cases and is defending them vigorously. While the results of litigation cannot be predicted with certainty, management believes the final outcome of such litigation will not have a material adverse effect on the Company's consolidated financial position. The Company's 401(k) plan is currently under audit by the Internal Revenue Service (the "IRS") for the year ended December 31, 1993. Although the audit is for the 1993 plan year, certain conclusions of the IRS would be applicable to other years as well. In addition, the IRS has established an Employee Leasing Market Segment Group for the purpose of identifying specific compliance issues prevalent in certain segments of the PEO industry. Approximately 70 PEOs, including the Company, have been randomly selected by the IRS for audit pursuant to this program. One issue that has arisen from these audits is whether a PEO can be a co-employer of worksite employees, including officers and owners of client companies, for various purposes under the Internal Revenue Code of 1986, as amended (the "Code"), including participation in the PEO's 401(k) plan. With respect to the 401(k) Plan audit, the Company understands that the IRS Houston District intends to seek technical advice (the "Technical Advice Request") from the IRS National Office about (1) whether participation in the 401(k) Plan by worksite employees, including officers of client companies, violates the exclusive benefit rule under the Code because they are not employees of the Company, and (2) whether the 401(k) Plan's failure to satisfy a nondiscrimination test relating to contributions should result in disqualification of the 401(k) Plan because the Company has failed to provide evidence that it satisfies an alternative discrimination test. A draft copy of the Technical Advice Request has been sent to the Company for its comments before the IRS Houston District submits it to the IRS National Office. The draft of the Technical Advice Request contains the conclusions of the IRS Houston District with respect to the 1993 plan year that the 401(k) Plan should be disqualified because it (1) covers worksite employees who are not employees of the Company, and (2) failed a nondiscrimination test applicable to contributions and the Company has not furnished evidence that the 401(k) Plan satisfies an alternative test. The Company also understands that, with respect to the Market Segment study, the issue of whether a PEO and a client company may be treated as co-employers of worksite employees for certain federal tax purposes (the "Industry Issue") is being referred to the IRS National Office. Whether the National Office will address the Technical Advice Request independently of the Industry Issue is unclear. Should the IRS conclude that the Company is not a "co-employer" of worksite employees for purposes of the Code, worksite employees could not continue to make salary deferral contributions to the 401(k) Plan or pursuant to the Company's cafeteria plan or continue to participate in certain other employee benefit plans of the Company. The Company believes that, although unfavorable to the Company, a prospective application of such a conclusion (that is, one applicable only to periods after the conclusion by the IRS is finalized) would not have a material adverse effect on its financial position or results of operations, as the Company could continue to make available comparable benefit programs to its client companies at comparable costs to the Company. However, if the IRS National Office adopts the conclusions of the IRS Houston District set forth in the Technical Advice Request and any such conclusion were applied retroactively to disqualify the 401(k) Plan for 1993 and subsequent years, employees' vested account balances under the 401(k) Plan would become taxable, the Company would lose its tax deductions to the extent its matching F-24 90 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED) contributions were not vested, the 401(k) Plan's trust would become a taxable trust and the Company would be subject to liability with respect to its failure to withhold applicable taxes with respect to certain contributions and trust earnings. Further, the Company would be subject to liability, including penalties, with respect to its cafeteria plan for the failure to withhold and pay taxes applicable to salary deferral contributions by employees, including worksite employees. In such a scenario, the Company also would face the risk of client dissatisfaction and potential litigation. While, the Company is not able to predict either the timing or the nature of any final decision that may be reached with respect to the 401(k) Plan audit or with respect to the Technical Advice Request or the Market Segment Group study and the ultimate outcome of such decisions, the Company believes that a retroactive application of an unfavorable determination is unlikely. The Company also believes that a prospective application of an unfavorable determination will not have a material adverse effect on the Company's consolidated financial position or results of operations. In addition to the 401(k) Plan audit and Market Segment Study, the Company notified the IRS of certain operational issues concerning nondiscrimination test results for certain prior plan years. In 1991 the Company engaged a third party vendor to be the 401(k) Plan's record keeper and to perform certain required annual nondiscrimination tests for the 401(k) Plan. Each year such record keeper reported to the Company that such nondiscrimination tests had been satisfied. However, in August 1996 the 401(k) Plan's record keeper advised the Company that certain of these tests had been performed incorrectly for prior years and, in fact, that the 401(k) Plan had failed certain tests for the 1993, 1994 and 1995 plan years. The Company has subsequently determined that the 401(k) Plan also failed a nondiscrimination test for 1991 and 1992, closed years for tax purposes. At the time the Company received such notice, the period in which the Company could voluntarily "cure" this operational defect had lapsed for all such years, except 1995. With respect to the 1995 plan year, the Company has caused the 401(k) Plan to refund the required excess contributions and earnings thereon to the affected employees. In connection with this correction, the Company has accrued approximately $51,000 for an excise tax applicable to this plan year. With respect to all other plan years, the Company has proposed a corrective action to the IRS under which the Company would make additional contributions to certain plan participants which bring the plan into compliance with the discrimination tests. The Company has recorded an accrual for its estimate of the cost of corrective measures and penalties for all of the affected plan years, which accrual is reflected in Other accrued liabilities -- noncurrent on the Consolidated Balance Sheet. The Company calculated its estimates based on its understanding of the resolution of similar issues with the IRS. Separate calculations were made to determine the Company's estimate of both the cost of corrective measures and penalties for each plan year. In addition, the Company has recorded an asset for an amount recoverable from the 401(k) Plan's record keeper should the Company ultimately be required to pay the amount accrued for such corrective measures and penalties, which amount is reflected in Other assets on the Consolidated Balance Sheet. The amount of the accrual is the Company's estimate of the cost of corrective measures and practices, although no assurance can be given that the actual amount that the Company may be ultimately required to pay will not substantially exceed the amount accrued. The net of these amounts is reflected on the Company's Consolidated Statement of Operations as a component of other income (expense), net, and their tax effect is included in the provision for income taxes. Based on its understanding of the settlement experience of other companies with the IRS, the Company does not believe the ultimate resolution of this 401(k) Plan matter will have a material adverse effect on the Company's financial condition or results of operations. 5. RELATED PARTY TRANSACTIONS In connection with an exercise of stock options in 1995, the Company entered into a loan agreement with an officer, whereby the Company paid certain federal income tax withholding requirements related to the stock option exercise on behalf of the officer in the amount of $694,000. The loan agreement called for an additional amount to be advanced to the officer in the event the ultimate tax liability resulting from the exercise exceeded the statutory withholding requirements. In April 1996, the Company loaned the officer an F-25 91 ADMINISTAFF, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED) additional $300,000 relating to this transaction. The loans are repayable in five years, accrue interest at 6.83%, and are secured by 448,667 shares of the Company's common stock. In April 1996, the Company entered into a settlement agreement relating to litigation in which the Company and Technology and Business Consultants, Inc. ("TBC") were co-defendants. TBC is a company whose stockholders are three directors/officers of the Company. In accordance with the settlement agreement, $285,000 was paid to the plaintiff. The Company paid the entire amount of the settlement; however, TBC has agreed to reimburse the Company for the entire amount of the settlement not recovered through the Company's general liability insurance. In August 1996, the Company received $113,000 pursuant to such coverage. The remaining $172,000 is expected to be reimbursed by TBC prior to the end of 1996. In October 1996 the Company purchased various computer equipment from TBC at a total cost of $209,000. 6. INITIAL PUBLIC OFFERING The Company remains in registration with the Securities and Exchange Commission for the offering of up to 3,450,000 shares of its common stock. The timetable of the proposed offering is uncertain; however, the Company filed an amendment to its registration statement in October 1996, responding to comments from its initial filing and updating all information to September 30, 1996. The Company has incurred costs totaling $1.1 million through September 30, 1996 related to the offering which are included in prepaid expenses on the consolidated balance sheet. Upon consummation of the offering, such costs will be reflected as a reduction to stockholders' equity. F-26 92 [Graphic depiction of traditional small business/employee relationship which presents each of the responsibilities of the employer. A second graphic depicts the three party relationship between a small business, the employee and the Company as well as the division of responsibilities between the Company and the small business owner.] 93 [ADMINISTAFF LOGO] 94 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION(1) SEC Registration Fee............................................. $ 15,518 NASD Filing Fee.................................................. 5,000 NYSE Listing Fee................................................. 25,000 Accounting Fees and Expenses..................................... 625,000 Legal Fees and Expenses.......................................... 660,000 Printing Expenses................................................ 280,000 Blue Sky Qualification Fees and Expenses......................... 5,000 Transfer Agent's Fees............................................ 30,000 Miscellaneous.................................................... 104,482 ---------- TOTAL.................................................. $1,750,000 =========
- --------------- (1) The amounts set forth above, except for the SEC, NASD and NYSE fees, are in each case estimated. ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS Subsection (a) of section 145 of the General Corporation Law of the State of Delaware empowers a corporation 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 he 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 him in connection with such action, suit or proceeding if he acted in good faith and in a manner he 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 his conduct was unlawful. Subsection (b) of Section 145 empowers a corporation 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 such person acted in any of the capacities set forth above, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been made to be liable to the corporation unless and only to the extent that the 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 Court of Chancery or such other court shall deem proper. Section 145 further provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145 in the defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; that indemnification provided for by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person's heirs, executors and administrators; and empowers the corporation to purchase and maintain insurance on behalf of a director or officer of the corporation against any II-1 95 liability asserted against him and incurred by him in any such capacity, or arising out of his status as such whether or not the corporation would have the power to indemnify him against such liabilities under Section 145. Section 102(b)(7) of the General Corporation Law of the State of Delaware provides that a certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. Article Eleventh of the Company's Certificate of Incorporation states that: No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty by such director as a director; provided, however, that this Article Eleventh shall not eliminate or limit the liability of a director to the extent provided by applicable law (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware or (iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this Article Eleventh shall apply to, or have any effect on, the liability or alleged liability of any director of the Corporation for or with respect to any facts or omissions of such director occurring prior to such amendment or repeal. If the General Corporation Law of the State of Delaware is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of the State of Delaware, as so amended. In addition, Article VI of the Company's Bylaws further provides that the Company shall indemnify its officers, directors and employees to the fullest extent permitted by law. Pursuant to the Underwriting Agreement filed as Exhibit 1.1 to this Registration Statement, the Underwriters have agreed to indemnify, under certain conditions, the Company, its officers and directors, and persons who control the Company within the meaning of the Securities Act of 1933, as amended, against certain liabilities. ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES Set forth below is certain information concerning all sales of securities by the Company during the past three years that were not registered under the Securities Act of 1933. The description presented below gives effect to the Company's recent reorganization and accompanying two for three share exchange. (a) On May 13, 1994, the Company issued $4 million principal amount of subordinated notes and stock purchase warrants representing the right to purchase 694,436 shares of Common Stock of the Company to the Texas Growth Fund, in exchange for an aggregate purchase price of $4 million. (b) On May 13, 1994, the Company issued 1,532,303 shares of its Common Stock at a price of $2.61 per share to Pyramid Ventures, Inc., in exchange for an aggregate purchase price of $4 million. (c) On May 13, 1994, the Company issued a stock purchase warrant entitling the holder to purchase up to 153,230 shares of the Company's Common Stock to Rauscher Pierce Refsnes, Inc. ("Rauscher"), in exchange for $100.00 and Rauscher's services in securing the TGF and Pyramid investments described in paragraphs (a) and (b) of this item. (d) On June 12, 1995, Mr. Rawson exercised options to purchase 448,667 shares of Common Stock at a price of $0.75 per share. The aggregate exercise price of $336,500 was paid in cash by Mr. Rawson. II-2 96 (e) On September 15, 1995, Mr. Broussard exercised options to purchase 40,000 shares of Common Stock at a price of $1.50 per share. The aggregate exercise price of $60,000 was paid in cash by Mr. Broussard. These transactions were completed without registration under the Securities Act of 1933 in reliance on the exemption provided by Section 4(2) of the Securities Act of 1933. ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) Exhibits
EXHIBIT DESCRIPTION - -------------------- ------------------------------------------------------------------------ **1.1 -- Form of Underwriting Agreement. *3.1 -- Certificate of Incorporation. *3.2 -- Bylaws. *4.1 -- Specimen Common Stock Certificate. *4.2 -- Registration Rights Agreement, as amended, dated May 13, 1994, by and among Administaff, Inc., Pyramid Ventures, Inc. and the Board of Trustees of the Texas Growth Fund as Trustee for the Texas Growth Fund-1991 Trust. *4.3 -- Investor Agreement, as amended, dated May 13, 1994, by and among Administaff, Inc., Pyramid Ventures, Inc. and the Board of Trustees of the Texas Growth Fund as Trustee for the Texas Growth Fund-1991 Trust. *4.4 -- Common Stock Warrant, as amended, issued to the Texas Growth Fund-1991 Trust on May 13, 1994. *4.5 -- Warrant Agreement, as amended, dated May 13, 1994, between Rauscher Pierce Refsnes, Inc. and Administaff, Inc. *4.6 -- Voting Agreement, as amended, dated May 13, 1994, by and among Administaff, Inc., Pyramid Ventures, Inc., the Board of Trustees of the Texas Growth Fund as Trustee for the Texas Growth Fund-1991 Trust and certain stockholders of Administaff, Inc. *4.7 -- Subordinated Note of Administaff, Inc. in favor of The Board of Trustees of the Texas Growth Fund, as Trustee. *5.1 -- Opinion of Andrews & Kurth L.L.P. as to the legality of the securities being registered. **10.1 -- Amended and Restated Promissory Note among Administaff, Inc., Richard G. Rawson, Dawn Rawson, and RDKB Rawson LP, dated as of December 16, 1996, amending and restating a Promissory Note dated June 22, 1995. **10.2 -- Amended and Restated Promissory Note among Administaff, Inc., Jerald L. Broussard and Mary Catherine Broussard, dated as of December 30, 1996, amending and restating a Promissory Note dated September 4, 1995.
II-3 97
EXHIBIT DESCRIPTION - -------------------- ------------------------------------------------------------------------ *10.3 -- Credit agreement between Administaff, Inc. and First National Bank of Chicago, dated as of October 16, 1995. *10.4 -- Amendment No. 1 and Waiver to Credit Agreement, dated as of March 12, 1996. **10.5 -- Amended and Restated Promissory Note, dated as of December 16, 1996, among Administaff, Inc., Richard G. Rawson, Dawn Rawson, and RDKB Rawson LP, amending and restating a Promissory Note dated April 11, 1996. **10.6 -- Amended and Restated Security Agreement-Pledge among Administaff, Inc., Richard G. Rawson, Dawn Rawson, and RDKB Rawson LP, dated as of December 16, 1996, pursuant to which the collateral securing the promissory notes included as Exhibits 10.1 and 10.5 is pledged. **10.7 -- Amended and Restated Security Agreement-Pledge among Administaff, Inc., Jerald L. Broussard and Mary Catherine Broussard, dated as of December 30, 1996, pursuant to which the collateral securing the promissory note included as Exhibit 10.2 is pledged. **10.8 -- 1995 Administaff Stock Option Plan (as amended and restated). **11.1 -- Statement re: Computation of Per Share Earnings. *21.1 -- Subsidiaries of Administaff, Inc. 23.1 -- Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1). **23.2 -- Consent of Ernst & Young LLP. *24.1 -- Powers of Attorney. *24.2 -- Power of Attorney of Paul S. Lattanzio. *24.3 -- Power of Attorney of Linda Fayne Levinson. *24.4 -- Power of Attorney of Stephen M. Soileau. **24.5 -- Power of Attorney of Jack Fields. **27.1 -- Financial Data Schedule
- --------------- * Previously filed as an Exhibit to this Registration Statement. ** Filed with this Amendment. Pursuant to Item 601(b)(4)(iii) of Regulation S-K, the Company has not filed any instrument with respect to long-term debt not being registered if the total amount of securities authorized thereunder does not exceed 10 percent of the total assets of the Company and agrees to file a copy of such instruments with the Commission upon request. ITEM 17. UNDERTAKINGS 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 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. II-4 98 The undersigned registrant hereby undertakes: (1) That for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) That for the purpose of determining any liability under the Securities Act of 1933, each posteffective amendment that contains a form of prospectus 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 provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser. II-5 99 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Amendment No. 4 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Houston, State of Texas, on January 3, 1997. ADMINISTAFF, INC. By: /s/ RICHARD G. RAWSON ------------------------------------ Richard G. Rawson Senior Vice President, Chief Financial Officer and Treasurer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on January 3, 1997.
SIGNATURE TITLE - -------------------------------------------- -------------------------------------------- /s/ PAUL J. SARVADI* President, Chief Executive Officer and - -------------------------------------------- Director (Principal Executive Officer) Paul J. Sarvadi /s/ RICHARD G. RAWSON Senior Vice President, Chief Financial - -------------------------------------------- Officer, Treasurer and Director (Principal Richard G. Rawson Financial Officer and Principal Accounting Officer) /s/ GERALD M. McINTOSH* Senior Vice President and Director - -------------------------------------------- Gerald M. McIntosh /s/ JAMES W. HAMMOND* Senior Vice President and Director - -------------------------------------------- James W. Hammond /s/ SCOTT C. HENSEL* Senior Vice President and Director - -------------------------------------------- Scott C. Hensel /s/ LINDA FAYNE LEVINSON* Director - -------------------------------------------- Linda Fayne Levinson /s/ PAUL S. LATTANZIO* Director - -------------------------------------------- Paul S. Lattanzio /s/ STEPHEN M. SOILEAU* Director - -------------------------------------------- Stephen M. Soileau /s/ JACK FIELDS* Director - -------------------------------------------- Jack Fields *By: /s/ RICHARD G. RAWSON - -------------------------------------------- Richard G. Rawson (Attorney-in-fact for persons indicated)
II-6 100 INDEX TO EXHIBITS
EXHIBIT DESCRIPTION - -------------------- ------------------------------------------------------------------------ **1.1 -- Form of Underwriting Agreement. *3.1 -- Certificate of Incorporation. *3.2 -- Bylaws. *4.1 -- Specimen Common Stock Certificate. *4.2 -- Registration Rights Agreement, as amended, dated May 13, 1994, by and among Administaff, Inc., Pyramid Ventures, Inc. and the Board of Trustees of the Texas Growth Fund as Trustee for the Texas Growth Fund-1991 Trust. *4.3 -- Investor Agreement, as amended, dated May 13, 1994, by and among Administaff, Inc., Pyramid Ventures, Inc. and the Board of Trustees of the Texas Growth Fund as Trustee for the Texas Growth Fund-1991 Trust. *4.4 -- Common Stock Warrant, as amended, issued to the Texas Growth Fund-1991 Trust on May 13, 1994. *4.5 -- Warrant Agreement, as amended, dated May 13, 1994, between Rauscher Pierce Refsnes, Inc. and Administaff, Inc. *4.6 -- Voting Agreement, as amended, dated May 13, 1994, by and among Administaff, Inc., Pyramid Ventures, Inc., the Board of Trustees of the Texas Growth Fund as Trustee for the Texas Growth Fund-1991 Trust and certain stockholders of Administaff, Inc. *4.7 -- Subordinated Note of Administaff, Inc. in favor of The Board of Trustees of the Texas Growth Fund, as Trustee. *5.1 -- Opinion of Andrews & Kurth L.L.P. as to the legality of the securities being registered. **10.1 -- Amended and Restated Promissory Note among Administaff, Inc., Richard G. Rawson, Dawn Rawson, and RDKB Rawson LP, dated as of December 16, 1996, amending and restating a Promissory Note dated June 22, 1995. **10.2 -- Amended and Restated Promissory Note among Administaff, Inc., Jerald L. Broussard and Mary Catherine Broussard, dated as of December 30, 1996, amending and restating a Promissory Note dated September 4, 1995. *10.3 -- Credit agreement between Administaff, Inc. and First National Bank of Chicago, dated as of October 16, 1995. *10.4 -- Amendment No. 1 and Waiver to Credit Agreement, dated as of March 12, 1996. **10.5 -- Amended and Restated Promissory Note, dated as of December 16, 1996, among Administaff, Inc., Richard G. Rawson, Dawn Rawson, and RDKB Rawson LP, amending and restating a Promissory Note dated April 11, 1996. **10.6 -- Amended and Restated Security Agreement-Pledge among Administaff, Inc., Richard G. Rawson, Dawn Rawson, and RDKB Rawson LP, dated as of December 16, 1996, pursuant to which the collateral securing the promissory notes included as Exhibits 10.1 and 10.5 is pledged. **10.7 -- Amended and Restated Security Agreement-Pledge among Administaff, Inc., Jerald L. Broussard and Mary Catherine Broussard, dated as of December 30, 1996, pursuant to which the collateral securing the promissory note included as Exhibit 10.2 is pledged. **10.8 -- 1995 Administaff Stock Option Plan (as amended and restated). **11.1 -- Statement re: Computation of Per Share Earnings.
101
EXHIBIT DESCRIPTION - -------------------- ------------------------------------------------------------------------ *21.1 -- Subsidiaries of Administaff, Inc. 23.1 -- Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1). **23.2 -- Consent of Ernst & Young LLP. *24.1 -- Powers of Attorney. *24.2 -- Power of Attorney of Paul S. Lattanzio. *24.3 -- Power of Attorney of Linda Fayne Levinson. *24.4 -- Power of Attorney of Stephen M. Soileau. **24.5 -- Power of Attorney of Jack Fields. **27.1 -- Financial Data Schedule
- --------------- * Previously filed as an Exhibit to this Registration Statement. ** Filed with this Amendment. EX-1.1 2 FORM OF UNDERWRITING AGREEMENT 1 EXHIBIT 1.1 3,000,000 Shares ADMINISTAFF, INC. Common Stock, $.01 par value UNDERWRITING AGREEMENT ___________________, 1997 2 _______________, 1997 Morgan Stanley & Co. Incorporated Donaldson, Lufkin & Jenrette Securities Corporation c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 Dear Sirs: Administaff, Inc., a Delaware corporation (the "Company"), proposes to issue and sell to the several Underwriters named in Schedule II hereto (the "Underwriters") an aggregate of 3,000,000 shares of the common stock, $.01 par value, of the Company (the "Firm Shares"). In addition, certain stockholders of the Company (the "Selling Stockholders") named in Schedule I hereto severally propose to sell to the several Underwriters not more than an additional 450,000 shares of the common stock, $.01 par value, of the Company (the "Additional Shares"), each Selling Stockholder selling the amount set forth opposite such Selling Stockholder's name in Schedule I hereto, if and to the extent that you, as Managers of the offering, shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of common stock granted to the Underwriters in Article III hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the "Shares". The shares of common stock, $.01 par value, of the Company to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the "Common Stock". The Company and the Selling Stockholders are hereinafter sometimes referred to collectively as the "Sellers". The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement (Commission File No. 33-96952) relating to the Shares. The registration statement as amended at the time it becomes effective, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter referred to as the "Registration Statement"; the prospectus in the form first used to confirm sales of Shares is hereinafter referred to as the "Prospectus". If the Company files a registration statement to register a portion of the Shares and relies on Rule 462(b) for such registration statement to become effective upon filing with the Commission (the "Rule 462 Registration Statement"), then any reference to the "Registration Statement" shall be deemed to refer to both the registration statement referred to above (Commission File No. 33-96952) and the Rule 462 Registration Statement, in each case as amended from time to time. 3 I. The Company represents and warrants to each of the Underwriters that: (a) The Registration Statement has become effective, no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission. (b) (i) Each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph (b) do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein. (c) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole. (d) Each subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole. -2- 4 (e) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus under the heading "Description of Capital Stock". (f) The shares of Common Stock (including the Shares to be sold by the Selling Stockholders) outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid and non-assessable. (g) The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non- assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights. (h) This Agreement has been duly authorized, executed and delivered by the Company. (i) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of applicable law or the certificate of incorporation or bylaws of the Company or any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares and except to the extent that the failure to obtain such consent, approval, authorization or qualification would not have a material adverse effect on the Company and its subsidiaries, taken as a whole. (j) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus. (k) There are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or any statutes, regulations, contracts or other documents that are required to be described in the -3- 5 Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required. (l) Each of the Company and its subsidiaries has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, except to the extent that the failure to obtain or file would not have a material adverse effect on the Company and its subsidiaries, taken as a whole. (m) Each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 or Rule 462 under the Securities Act, complied when so filed in all material respects with the Securities Act and the rules and regulations of the Commission thereunder. (n) The Company is not an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended. (o) The Company and its subsidiaries are (i) in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole. (p) The Company has complied with all provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida). II. Each of the Selling Stockholders represents and warrants to each of the Underwriters that: (a) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder. -4- 6 (b) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Stockholder and ______________________, as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder (the "Custody Agreement"), and the Power of Attorney appointing certain individuals as such Selling Stockholder's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law, or the certificate of incorporation, by-laws or other governing instrument of such Selling Stockholder (if such Selling Stockholder is a corporation or other entity), or any agreement or other instrument binding upon such Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, except for such contraventions that would not adversely affect the title to the Shares, the offering of the Shares by the Underwriters hereunder or the ability of such Selling Stockholder to perform its obligations hereunder, and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except as such may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, and except for such consents, approvals, authorizations or orders the failure of which to obtain would not adversely affect the title to the Shares, the offering of the Shares by the Underwriters hereunder or the ability of such Selling Stockholder to perform its obligations hereunder. (c) Such Selling Stockholder has, and on the Closing Date will have, valid, marketable title to the Shares to be sold by such Selling Stockholder and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder. (d) The Shares to be sold by such Selling Stockholder pursuant to this Agreement have been duly authorized and are validly issued, fully paid and non-assessable. (e) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Stockholder and are valid and binding agreements of such Selling Stockholder. (f) Delivery of the Shares to be sold by such Selling Stockholder pursuant to this Agreement will pass marketable title to such Shares free and clear of any security interests, claims, liens, equities and other -5- 7 encumbrances, assuming the Underwriters are purchasers for value in good faith and without notice of any adverse claim. (g) All information furnished in writing by or on behalf of such Selling Stockholder for use in the Registration Statement and Prospectus is, and on the Closing Date will be, true, correct and complete, and does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading. III. The Company hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agree, severally and not jointly, to purchase from the Company at $__________ per share (the "Purchase Price") the number of Firm Shares (subject to such adjustments to eliminate fractional shares as you may determine) that bears the same proportion to the number of Firm Shares to be sold by the Company as the number of Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the total number of Firm Shares. On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Selling Stockholders agree to sell to the Underwriters the Additional Shares, and the Underwriters shall have a one-time right to purchase, severally and not jointly, up to 450,000 Additional Shares at the Purchase Price. Additional Shares may be purchased as provided in Article V hereof solely for the purpose of covering over-allotments made in connection with the offering of the Firm Shares. If any Additional Shares are to be purchased, each Underwriter agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such adjustments to eliminate fractional shares as you may determine) that bears the same proportion to the total number of Additional Shares to be purchased as the number of Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the total number of Firm Shares. Each Seller hereby agrees that, without your prior written consent, it will not, during the period ending 180 days after the date of the Prospectus, (a) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (b) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that each Selling Stockholder shall be permitted to make a bona fide pledge of shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock during such period if such Selling Stockholder delivers to Morgan Stanley & Co. Incorporated an agreement by such pledgee substantially similar to the agreement contained in this -6- 8 paragraph. The foregoing sentence shall not apply to (a) the Shares to be sold hereunder or (b) the issuance by the Company of any shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which you have been advised in writing. In addition, each Selling Stockholder agrees that, without your prior written consent, it will not, during the period ending 180 days after the date of the Prospectus, make any demand for, or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. IV. The Sellers are advised by you that the Underwriters propose to make a public offering of their respective portions of the Shares as soon after the Registration Statement and this Agreement have become effective as in your judgment is advisable. The Sellers are further advised by you that the Shares are to be offered to the public initially at $_______ per share (the public offering price) and to certain dealers selected by you at a price that represents a concession not in excess of $_______ per share under the public offering price, and that any Underwriter may allow, and such dealers may reallow, a concession, not in excess of $_________ per share, to any Underwriter or to certain other dealers. V. Payment for the Firm Shares to be sold by the Company shall be made by certified or official bank check or checks payable to the order of the Company in New York Clearing House funds at the office of Morgan Stanley & Co. Incorporated, 1585 Broadway, New York, New York, at 10:00 a.m., local time, on ________________, 1997, or at such other time or place on the same or such other date, not later than __________________, 1997, as shall be designated in writing by you. The time and date of such payment are hereinafter referred to as the "Closing Date". Payment for any Additional Shares to be sold by each Selling Stockholder shall be made by certified or official bank check or checks payable to the order of such Selling Stockholder in New York Clearing House funds at the office of Morgan Stanley & Co. Incorporated, 1585 Broadway, New York, New York, at 10:00 a.m., local time, on such date (which may be the same as the Closing Date but shall in no event be earlier than the Closing Date nor later than ten business days after the giving of the notice hereinafter referred to) as shall be designated in a written notice from you to the Company and the Selling Stockholders of your determination, on behalf of the Underwriters, to purchase a number, specified in said notice, of Additional Shares, or on such other date, in any event not later than __________________, 1997, as shall be designated in writing by you. The time and date of such payment are hereinafter referred to as the "Option Closing Date". The notice of the determination to exercise the option to purchase Additional Shares and of the Option Closing Date may be given at any time within 30 days after the date of this Agreement. Certificates for the Firm Shares and Additional Shares shall be in definitive form and registered in such names and in such denominations as you shall request in writing -7- 9 not later than two business days prior to the Closing Date or the Option Closing Date, as the case may be. The certificates evidencing the Firm Shares and Additional Shares shall be delivered to you on the Closing Date or the Option Closing Date, as the case may be, for the respective accounts of the several Underwriters, with any transfer taxes payable in connection with the transfer of the Shares to the Underwriters duly paid, against payment of the Purchase Price therefor. VI. The obligations of the Sellers and the several obligations of the Underwriters hereunder are subject to the condition that the Registration Statement shall have become effective not later than the date hereof. The several obligations of the Underwriters hereunder are subject to the following further conditions: (a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus. (b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened. (c) You shall have received on the Closing Date an opinion of Andrews & Kurth L.L.P., counsel for the Company, dated the Closing Date, to the effect that (i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such -8- 10 qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries taken as a whole; (ii) each subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries taken as a whole; (iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus under the caption "Description of Capital Stock"; (iv) the shares of Common Stock (including the Shares to be sold by the Selling Stockholders) outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable; (v) the Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights; (vi) this Agreement has been duly authorized, executed and delivered by the Company; (vii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of applicable law (making no comment as to the adequacy of the Company's disclosure in the Registration Statement for state securities or Blue Sky laws with respect to this subparagraph) or the certificate of incorporation or by-laws of the Company or, to such counsel's knowledge, any agreement or other instrument binding upon the Company -9- 11 or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to such counsel's knowledge, any judgment, or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares; (viii) the statements (A) in the Prospectus under the captions "Risk Factors -- IRS Audit of the Company's 401(k) Plan; IRS Employee Leasing Market Segment Group", "Risk Factors -- Costs of 401(k) Plan Compliance", "Risk Factors -- State and Local Regulation", "Industry Regulation", "Management -- Stock Option Plan", "Management -- Related Party Transactions", "Description of Capital Stock" and "Shares Eligible for Future Sale" and (B) in Items 14 and 15 of the Registration Statement, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, are accurate and complete in all material respects; (ix) such counsel does not know of any legal or governmental proceeding pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required; (x) the Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended; and (xi) such counsel (A) is of the opinion that the Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (B) believes that -10- 12 (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Registration Statement and the prospectus included therein at the time the Registration Statement became effective did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (C) believes that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Prospectus does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. With respect to subparagraph (xi) of this paragraph (c), Andrews & Kurth L.L.P. may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification except as specified and that they relied as to matters of fact upon the officers and other representatives of the Company. The opinion of Andrews & Kurth L.L.P. described in this paragraph (c) shall be rendered to you at the request of the Company and shall so state therein. (d) You shall have received on the Closing Date an opinion of McGinnis, Lochridge & Kilgore, LLP, special counsel for the Company, dated the Closing Date, to the effect that the statements in the Prospectus under the captions "Risk Factors -- IRS Audit of the Company's 401(k) Plan; IRS Employee Leasing Market Segment Group", "Risk Factors -- Costs of 401(k) Plan Compliance", "Risk Factors -- State and Local Regulation" and "Industry Regulation", in each case insofar as such statements constitute summaries of legal matters, documents or proceedings referred to therein, are accurate in all material respects. The opinion of McGinnis, Lochridge & Kilgore, LLP described in this paragraph (d) shall be rendered to you at the request of the Company and shall so state therein. (e) You shall have received on the Closing Date an opinion of Andrews & Kurth L.L.P., counsel for the Selling Stockholders, dated the Closing Date, to the effect that: -11- 13 (i) this Agreement has been duly authorized, executed and delivered by or on behalf of each of the Selling Stockholders; (ii) the execution and delivery by each Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder will not contravene any provision of applicable law, or the certificates of incorporation, by- laws or other governing instrument of such Selling Stockholder (if such Selling Stockholder is a corporation or other entity), or, to such counsel's knowledge, any agreement or other instrument binding upon such Selling Stockholder or, to such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, except for such contraventions that would not adversely affect the title to the Shares, the offering of the Shares by the Underwriters hereunder or the ability of such Selling Stockholder to perform its obligations hereunder, and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as have been obtained under the Securities Act or as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, and except for such consents, approvals, authorizations or orders the failure of which to obtain would not adversely affect the title to the Shares, the offering of the Shares by the Underwriters hereunder or the ability of such Selling Stockholder to perform its obligations hereunder; (iii) each of the Selling Stockholders has valid and marketable title to the Shares to be sold by such Selling Stockholder and has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder; (iv) the Custody Agreement of each Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder; and -12- 14 (v) delivery of the Shares to be sold by each Selling Stockholder pursuant to this Agreement will pass marketable title to such Shares free and clear of any security interests, claims, liens, equities and other encumbrances, assuming the Underwriters are purchasers for value in good faith and without notice of any adverse claim. With respect to this paragraph (d), Andrews & Kurth L.L.P. may rely upon an opinion or opinions of counsel for any Selling Stockholders and, to the extent such counsel deems appropriate, upon the representations of each Selling Stockholder contained herein and in the Custody Agreement and Power of Attorney of such Selling Stockholder and in other documents and instruments; provided that (A) each such counsel for the Selling Stockholders is satisfactory to your counsel, (B) a copy of each such opinion so relied upon is delivered to you and is in form and substance satisfactory to your counsel, (C) copies of the Custody Agreements and Powers of Attorney any of any such other documents and instruments shall be delivered to you and shall be in form and substance satisfactory to your counsel and (D) Andrews & Kurth L.L.P. shall state in their opinion that they are justified in relying on each such other opinion. (f) You shall have received on the Closing Date an opinion of Fulbright & Jaworski L.L.P., special counsel for the Underwriters, dated the Closing Date, covering the matters referred to in subparagraphs (v), (vi), (viii) (but only as to the statements in the Prospectus under "Description of Capital Stock" and "Underwriters"), (x) and (xi) of paragraph (c) above. With respect to subparagraph (xi) of paragraph (c) above, Fulbright & Jaworski L.L.P. may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification except as specified and that they relied as to matters of fact to a certain extent upon the officers and other representatives of the Company. (g) You shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to you, from Ernst & Young L.L.P., independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus. -13- 15 (h) The "lock-up" agreements between you and certain stockholders, officers and directors of the Company relating to sales of shares of common stock of the Company or any securities convertible into or exercisable or exchangeable for such common stock, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. (i) The Company shall have complied with the provisions of Article VII(a) hereof with respect to the furnishing of Prospectuses on the business day next succeeding the date of this Agreement, in such quantities as you reasonably request. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Shares and other matters related to the issuance of the Additional Shares. VII. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows: (a) To furnish to you, without charge, three signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request and, in the case of the Prospectus, to furnish copies of the Prospectus in New York City, prior to 5:00 p.m., on the business day following the date of this Agreement, in such quantities as you reasonably request. (b) Before amending or supplementing the Registration Statement or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and to file no such proposed amendment or supplement to which you reasonably object. (c) If, during such period after the first date of the public offering of the Shares as in the opinion of your counsel the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of your counsel, it is necessary to amend or supplement the Prospectus to comply with law, forthwith to prepare, file with the -14- 16 Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law. (d) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request, to pay all expenses (including fees and disbursements of counsel) in connection with such qualification and to pay all filing fees in connection with any review of the offering of the Shares by the National Association of Securities Dealers, Inc. (e) To make generally available to the Company's security holders and to you as soon as practicable an earnings statement covering the twelve-month period ending December 31, 1997 that satisfies the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder. (f) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in Article VII(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, (iv) all filing fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Shares by the National Association of Securities Dealers, Inc., (v) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and -15- 17 expenses incident to listing the Shares on the New York Stock Exchange and other national securities exchanges and foreign stock exchanges, if any, (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expense of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, and (ix) all other reasonable costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Article VII. It is understood, however, that except as provided in this Article VII, Article IX and the penultimate paragraph of Article XI below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Shares by them and any advertising expenses connected with any offers they may make. VIII. Each Selling Stockholder, severally and not jointly, agrees to pay or cause to be paid (i) all taxes, if any, on the transfer and sale of the Shares being sold by any such Selling Stockholder and (ii) to the extent not previously paid by the Company, such Selling Stockholder's pro rata share (determined by dividing the number of Shares sold by such Selling Stockholder by the total number of Shares sold by all Sellers) of all costs and expenses incident to the performance of the obligations of the Selling Stockholders under this Agreement, including, but not limited to, all expenses incident to the delivery of the Shares, the fees and expenses of counsel and accountants for the Selling Stockholders and the Company, the costs and expenses of incident to the preparation, printing and filing of the Registration Statement (including all exhibits thereto) and the Prospectus and any amendments or supplements thereto, the expenses of qualifying the Shares under the securities or Blue Sky laws of various jurisdictions, all fees payable in connection with any review of the offering of the Shares by the National Association of Securities Dealers, Inc., and the cost of furnishing to the Underwriters the required copies of the Registration Statement and Prospectus and any amendments or supplements thereto. IX. The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred -16- 18 by any Underwriter or any such controlling person in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein. This indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if such is required by law, at or prior to the written confirmation of the sale of Shares to such person, and if the Prospectus (as so amended or supplemented) would have corrected the defect giving to rise to such loss, claim, damage, liability or expense. The Company also agrees to indemnify and hold harmless Morgan Stanley & Co. Incorporated ("Morgan Stanley") and each person, if any, who controls Morgan Stanley within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages, liabilities and judgments incurred as a result of Morgan Stanley's participation as a "qualified independent underwriter" within the meaning of Rule 2720 of the National Association of Securities Dealers' Conduct Rules in connection with the offering of the Shares, except for any losses, claims, damages, liabilities and judgments resulting from Morgan Stanley's, or such controlling person's, willful misconduct. Each Selling Stockholder agrees, severally and not jointly, to indemnify and hold harmless each Underwriter, and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. This indemnity -17- 19 agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if such is required by law, at or prior to the written confirmation of the sale of Shares to such person, and if the Prospectus (as so amended or supplemented) would have corrected the defect giving to rise to such loss, claim, damage, liability or expense. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (a) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (b) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (a) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, (b) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (c) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Stockholders and all persons, if any, who controls any Selling Stockholder within the meaning of either such Section, and that all such fees and -18- 20 expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons of Underwriters, such firm shall be designated in writing by Morgan Stanley & Co. Incorporated. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Stockholders, such firm shall be designated in writing by the persons named as attorneys-in-fact for the Selling Stockholders under the Powers of Attorney. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (a) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (b) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. Notwithstanding anything contained herein to the contrary, if indemnity may be sought pursuant to this Article IX in respect of such action or proceeding, then in addition to such separate firm for the indemnified parties, the indemnifying party shall be liable for the reasonable fees and expenses of not more than one separate firm (in addition to any local counsel) for Morgan Stanley in its capacity as a "qualified independent underwriter" and all persons, if any, who control Morgan Stanley within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act. If the indemnification provided for in the first, second or third paragraph of this Article IX is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (a) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (b) if the allocation provided by clause (a) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (a) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Sellers on the one hand and the Underwriters on the other hand in connection -19- 21 with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate public offering price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact relates to the information supplied by the Sellers or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Article IX are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Article IX were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Article IX, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and no Selling Stockholder shall be required to contribute any amount in excess of the total price at which the Shares to be sold by such Selling Stockholder were offered to the public. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Article IX are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. The indemnity and contribution provisions contained in this Article IX and the representations and warranties of the Company and the Selling Stockholders contained in this Agreement shall remain operative and in full force and effect regardless of (a) any termination of this Agreement, (b) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter, any Selling Stockholder or any person controlling any Stockholder, or the Company, its officers or directors or any person controlling the Company and (c) acceptance of and payment for any of the Shares. The parties hereto agree that the only information furnished by any Selling Stockholder to the Company expressly for use in any preliminary prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, is the information set forth in the "Questionnaire for Selling Stockholders" executed by -20- 22 such Selling Stockholder, a copy of which has been previously provided to counsel for the Underwriters. X. This Agreement shall be subject to termination by notice given by you to the Company, if (a) after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange or the National Association of Securities Dealers National Market System, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in your judgment, is material and adverse and (b) in the case of any of the events specified in clauses (a)(i) through (a)(iv), such event singly or together with any other such event makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus. XI. This Agreement shall become effective upon the later of (a) execution and delivery hereof by the parties hereto and (b) release of notification of the effectiveness of the Registration Statement by the Commission. If, on the Closing Date or the Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Shares that it or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Shares set forth opposite their respective names in Schedule II bears to the aggregate number of Firm Shares set forth opposite the names of all such nondefaulting Underwriters, or in such other proportions as you may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to Article III be increased pursuant to this Article XI by an amount in excess of one-ninth of such number of Shares without the written consent of such Underwriter. If, on the Closing Date or the Option Closing Date, as the case may be, any Underwriter or Underwriters shall fail or refuse to purchase Shares and the aggregate number of Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Shares to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of such Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter, the Company or the Selling Stockholders. In any such case either you or the relevant Sellers shall have the right to postpone the Closing Date or the Option -21- 23 Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of any Seller to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason any Seller shall be unable to perform its obligations under this Agreement, the Sellers will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. -22- 24 This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York. Very truly yours, ADMINISTAFF, INC. By ----------------------------------- Name: ------------------------------- Title: ------------------------------ The Selling Stockholders named in Schedule I hereto, acting severally By ----------------------------------- Name: ------------------------------- Attorney-In-Fact Accepted ________________, 1997 MORGAN STANLEY & CO. INCORPORATED DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION Acting severally on behalf of themselves and the several Underwriters name in Schedule II hereto. By Morgan Stanley & Co. Incorporated By ------------------------------------ Name: -------------------------------- Title: ------------------------------- -23- 25 Schedule I Selling Stockholders
=================================================================================================== Number of Additional Shares Selling Stockholder to be Sold - --------------------------------------------------------------------------------------------------- [NAMES OF SELLING STOCKHOLDERS] - --------------------------------------------------------------------------------------------------- Total Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450,000 ===================================================================================================
-24- 26 Schedule II Underwriters
========================================================================================== Number of Firm Shares Underwriter to be Purchased - ------------------------------------------------------------------------------------------ Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . . . . Donaldson, Lufkin & Jenrette Securities Corporation . . . . . . [NAMES OF OTHER UNDERWRITERS] . . . . . . . . . . . . . . . . . - ------------------------------------------------------------------------------------------ Total Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 3,000,000 ==========================================================================================
-25- EX-10.1 3 AMENDED AND RESTATED PROMISSORY NOTE DATE 12/16/96 1 EXHIBIT 10.1 AMENDED AND RESTATED PROMISSORY NOTE (THIS "NOTE") (SECURED BY SECURITY AGREEMENT) Effective Date: . . . . . . . . . . June 22, 1995 Makers: . . . . . . . . . . . . . . Richard G. Rawson and wife, Dawn Rawson 2902 Valley Manor Drive Kingwood, Harris County, Texas 77339; and RDKB Rawson, L.P., a Texas Family Limited Partnership 2902 Valley Manor Drive Kingwood, Harris County, Texas 77339 (collectively, the "Makers," and individually, a "Maker") Payee: . . . . . . . . . . . . . . . Administaff, Inc., a Delaware corporation (the "Payee") Place for Payment: . . . . . . . . . 19001 Crescent Springs Drive (including county) Kingwood, Montgomery County, Texas or any other place that Payee may designate in writing Principal Amount: . . . . . . . . . . Six Hundred Ninety-Three Thousand Six Hundred Ninety-Four and 75/100 Dollars ($693,694.75) Annual Interest Rate on Unpaid Principal from Date: . . . Six and 83/100 Percent (6.83%) Annual Interest Rate on Matured Unpaid Amounts: . . . . . Six and 83/100 Percent (6.83%) Terms of Payment (principal and interest): The principal of this Note shall be due and payable in full on June 22, 2000. Interest shall be due and payable annually as interest accrues, beginning on June 22, 1996, and continuing regularly and annually thereafter on the 22nd day of June of each year thereafter until June 22, 2000, when, as stated above, the entire principal balance of this Note, and all accrued unpaid interest thereon shall be due and payable Page 1 of 5 2 in full. Interest installments shall be calculated on the unpaid principal balance from time to time outstanding hereunder, from the date following the last interest payment date through the date of payment. Security for Payment: A Security Interest Created and Granted in the Following Amended and Restated Security Agreement (the "Security Agreement"): Date: . . . . . . . . . . . . . . . December _______, 1996 Debtors: . . . . . . . . . . . . . . Richard G. Rawson and wife, Dawn Rawson 2902 Valley Manor Drive Kingwood, Harris County, Texas 77339; and RDKB Rawson, L.P., a Texas Family Limited Partnership 2902 Valley Manor Drive Kingwood, Harris County, Texas 77339 Secured Party: . . . . . . . . . . . Administaff, Inc. 19001 Crescent Springs Drive Kingwood, Montgomery County, Texas 77339 Collateral Location: . . . . . . . . Secretary of Administaff, Inc. (including County) 19001 Crescent Springs Drive Kingwood, Montgomery County, Texas 77339 Collateral Description: . . . . . . Stock Certificate No. T 0013 (29,616 shares), No. T 0019 (220,500 shares), T 0025 (118,933 shares), T 0104 (25,769 shares) and No. T 0145 (19,434 shares) representing shares of common stock issued by Administaff, Inc., a Delaware corporation, and any and all stock certificate(s) issued in replacement, substitution, or redemption thereof or in substitution therefor, or as a result of any share split or reverse share split, together with all proceeds thereof, all as more fully described in the Security Agreement. Page 2 of 5 3 Each Maker jointly and severally promises to pay to the order of Payee the principal balance of this Note and accrued interest thereon, at the place for payment and according to the terms of payment and at the rates stated above. Makers shall have the right to prepay all or any portion of the outstanding principal balance of this Note. The holder of this Note may accelerate the maturity of a portion of the then outstanding principal balance of this Note if any part of the collateral securing payment of this Note is included in the initial public offering of securities of the issuer thereof. The portion of the outstanding principal balance hereof which may be accelerated is the portion which equals the actual sales price of the collateral sold in an arm's length transaction. This paragraph shall not limit the rights of the secured party under the Security Agreement or any other agreement or instrument executed as security for or otherwise in connection with this Note, whether now existing or hereafter executed (collectively, the "Other Documents"). If Makers default in the payment of this Note or under any term of the Security Agreement, or in the performance of any obligation under any of the Other Documents, and such default continues after the holder of this Note gives Makers notice of such default and the time within which it must be cured, as may be required by law or by written agreement, then the holder of this Note may, at its option, declare the unpaid principal balance hereof and accrued, unpaid interest thereon immediately due and payable in full without notice of any kind. Makers and each surety, endorser, and guarantor waive all demands for payment, presentations for payment, notices of intention to accelerate maturity, notices of acceleration of maturity, protests, and notices of protests and all other notices of whatever kind, to the extent permitted by law. If any one or more of this Note, the Security Agreement or any one or more of the Other Documents are given to an attorney for collection or enforcement, or if suit is brought for collection or enforcement, or if this Note is collected through probate, bankruptcy, or other judicial proceeding, then Makers shall pay the holder of this Note all costs of collection and enforcement, including reasonable attorney's fees and court costs, of not less than 10% of the amount due under this Note, in addition to other amounts due. It is the intention of Makers and Payee to comply strictly with all applicable usury laws. Interest on the debt evidenced by this Note, however denominated, shall not exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, collected or received under applicable law; any interest collected or received in excess of such maximum nonusurious amount shall be deemed a mistake and credited against the unpaid principal balance hereof then outstanding or, if the principal hereof has been repaid, refunded to Makers, and the effective interest rate and amount applicable to this Note shall automatically be reduced to the maximum nonusurious contract rate and amount of interest allowed for this Note under applicable law. The foregoing provision shall override all demands and charges, the effect of all prepayments, and all contrary provisions, if any, in this Note, the Security Agreement and the Other Documents. Page 3 of 5 4 Each Maker is responsible for all obligations represented by this Note. Notwithstanding anything contained herein, in the Security Agreement, the Other Documents or elsewhere to the contrary, except as specifically provided hereinafter in this paragraph, no judgment for the repayment of the indebtedness evidenced hereby or interest thereon will be enforced against the Makers or any of them personally or any property of the Makers or any of them other than the collateral furnished pursuant to the Security Agreement (the "Collateral") in any action to collect any amount payable hereunder or to enforce performance of any of the other provisions of the Security Agreement or any of the Other Documents; provided, however: (a) Nothing herein contained shall be construed as limiting or impairing enforcement against the Collateral or otherwise prohibiting Payee from exercising any and all remedies which this Note, the Security Agreement or the Other Documents permit, so long as the exercise of any remedy does not extend to execution against or recovery out of any property of Makers or any of them other than the Collateral in any action to foreclose or to collect any amounts payable hereunder; (b) Makers shall be fully and personally liable, jointly and severally, for any and all costs, expenses and other sums payable to third parties (including, without limitation, attorney's fees and court costs) paid or incurred by Payee to enforce this Note, to protect or enforce Payee's security interest in the Collateral or otherwise to enforce the Security Agreement, or to enforce the Other Documents, together with interest thereon at the rate of ten percent per annum. This Note is executed to amend and restate in its entirety that certain Promissory Note (Secured by Security Agreement) dated June 22, 1995 in the original principal amount of $693,694.75 executed by Richard G. Rawson and wife, Dawn Rawson payable to the order of Payee (the "First Note"), the purpose of such amendment and restatement being, generally, to evidence the Makers' and the Payee's agreement to add RDKB Rawson L.P., a Texas Family Limited Partnership, as an obligor hereon and to provide that the indebtedness evidenced hereby shall be non-recourse to the extent provided herein and in the Security Agreement. In order to induce Payee to amend and restate the First Note according to the terms hereof, Makers hereby acknowledge and agree that the principal amount of $693,694.75, together with accrued interest thereon from and after June 22, 1996 is fully due and owing under the First Note, and that such amounts (both principal and accrued unpaid interest thereon) are fully valid and subsisting as of the date of execution hereof and are not subject to set-off, deduction, defense or counterclaim of any kind whatsoever. Page 4 of 5 5 When the context requires, singular nouns and pronouns include the plural, and vice versa. EXECUTED the 16 day of DECEMBER, 1996 to be effective as of June 22, 1995. /s/ Richard G. Rawson /s/ Dawn Rawson - -------------------------------------- -------------------------------------- Richard G. Rawson Dawn Rawson RDKB RAWSON L.P., a Texas Family Limited Partnership By: /s/ Richard G. Rawson, Gen Partner ------------------------------------------------- Richard G. Rawson, General Partner Page 5 of 5 EX-10.2 4 AMENDED AND RESTATED PROMISSORY NOTE - BROUSSARD 1 EXHIBIT 10.2 AMENDED AND RESTATED PROMISSORY NOTE (THIS "NOTE") (SECURED BY SECURITY AGREEMENT) Effective Date: . . . . . . . . . . . . . . . . September 4, 1995 Makers: . . . . . . . . . . . . . . . . . . . . Jerald L. Broussard and wife, Mary Catherine Broussard 707 Masters Way Kingwood, Harris County, Texas 77339 (collectively, the "Makers" and individually, a "Maker") Payee: . . . . . . . . . . . . . . . . . . . . . Administaff, Inc., a Delaware corporation (the "Payee") Place for Payment: . . . . . . . . . . . . . . . 19001 Crescent Springs Drive (including county) Kingwood, Montgomery County, Texas or any other place that Payee may designate in writing. Principal Amount: . . . . . . . . . . . . . . . . One Hundred Forty-One Thousand Three Hundred Sixty and No/100 Dollars ($141,360.00) Annual Interest Rate on Unpaid Principal from Date: . . . . . . . . . Six and 83/100 Percent (6.83%) Annual Interest Rate on Matured Unpaid Amounts: . . . . . . . . . . . Six and 83/100 Percent (6.83%)
Terms of Payment (principal and interest): The principal of this Note shall be due and payable in full on September 4, 2000. Interest shall be due and payable annually as interest accrues, beginning on September 4, 1996, and continuing regularly and annually thereafter on the 4th day of September of each year thereafter until September 4, 2000, when, as stated above, the entire principal balance of this Note, and all accrued, unpaid interest thereon shall be due and payable in full. Interest installments shall be calculated on the unpaid principal balance from time to time outstanding hereunder, from the date following the last interest payment date through the date of payment. Page 1 of 5 2 Security for Payment: A security interest created and granted in the following Amended and Restated Security Agreement (the "Security Agreement"): Date: . . . . . . . . . . . . . . . . . December , 1996 ------ Debtors: . . . . . . . . . . . . . . . Jerald L. Broussard and wife, Mary Catherine Broussard 707 Masters Way Kingwood, Harris County, Texas 77339 Secured Party: . . . . . . . . . . . . Administaff, Inc. 19001 Crescent Springs Drive Kingwood, Montgomery County, Texas 77339 Collateral Location: . . . . . . . . . Secretary of Administaff, Inc. (including County) 19001 Crescent Springs Drive Kingwood, Montgomery County, Texas 77339 Collateral Description: . . . . . . . . Stock Certificate Nos. T 0133 (3,333 shares), No. T 0067 (10,000 shares), T 0068 (10,000 shares), T 0069 (6,667 shares), No. T 0070 (5,000 shares) and No. T 0071 for 5,000 shares representing shares of common stock issued by Administaff, Inc., a Delaware corporation, and any and all stock certificate(s) issued in replacement, substitution, or redemption thereof or as a result of any share split or reverse share split, together with all proceeds thereof, all as more fully described in the Security Agreement.
Each Maker jointly and severally promises to pay to the order of Payee the principal balance of this Note and interest accrued thereon, at the place for payment and according to the terms of payment and at the rates stated above. Makers shall have the right to prepay all or any portion of the outstanding principal balance of this Note. The holder of this Note may accelerate the maturity of a portion of the then outstanding principal balance of this Note if any part of the collateral securing payment of this Note is included in the initial public offering of securities of the issuer thereof. The portion of the outstanding principal balance hereof which may be accelerated is the portion which equals the actual sales price Page 2 of 5 3 of the collateral sold in an arm's length transaction. This paragraph shall not limit the rights of the secured party under the Security Agreement or any other agreement or instrument executed as security for or otherwise in connection with this Note, whether now existing or hereafter executed (collectively, the "Other Documents"). If Makers default in the payment of this Note or under any term of the Security Agreement, or in the performance of any obligation under any of the Other Documents, and such default continues after the holder of this Note gives Makers notice of such default and the time within which it must be cured, as may be required by law or by written agreement, then the holder of this Note may, at its option, declare the unpaid principal balance hereof and accrued, unpaid interest thereon immediately due and payable in full without notice of any kind. Makers and each surety, endorser, and guarantor waive all demands for payment, presentations for payment, notices of intention to accelerate maturity, notices of acceleration of maturity, protests, notices of protests, and all other notices of whatever kind, to the extent permitted by law. If any one or more of this Note, the Security Agreement, or any of the Other Documents are given to an attorney for collection or enforcement, or if suit is brought for collection or enforcement, or if this Note is collected through probate, bankruptcy, or other judicial proceeding, then Makers shall pay the holder of this Note all costs of collection and enforcement, including reasonable attorney's fees and court costs of not less than 10% of the amount due under this Note, in addition to other amounts due. It is the intention of Makers and Payee to comply strictly with all applicable usury laws. Interest on the debt evidenced by this Note, however denominated, shall not exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, collected, or received under applicable law; any interest collected or received in excess of such maximum nonusurious amount shall be deemed a mistake and credited against the unpaid principal balance hereof then outstanding or, if the principal hereof has been repaid, refunded to Makers, and the effective interest rate and amount applicable to this Note shall automatically be reduced to the maximum nonusurious contract rate and amount allowed for this Note under applicable law. The foregoing provision shall override all demands and charges, the effect of all prepayments, and all contrary provisions, if any, in this Note, the Security Agreement and the Other Documents. Each Maker is jointly and severally responsible for all obligations set forth in this Note. Notwithstanding anything contained herein, in the Security Agreement, the Other Documents or elsewhere to the contrary, except as specifically provided hereinafter in this paragraph, no judgment for the repayment of the indebtedness evidenced hereby or interest thereon will be enforced against the Makers or any of them personally or any property of the Makers or any of them other than the collateral furnished pursuant to the Security Agreement (the "Collateral") in any Page 3 of 5 4 action to collect any amount payable hereunder or to enforce performance of any of the other provisions of the Security Agreement or any of the Other Documents; provided, however: (a) Nothing herein contained shall be construed as limiting or impairing enforcement against the Collateral or otherwise prohibiting Payee from exercising any and all remedies which this Note, the Security Agreement or the Other Documents permit, so long as the exercise of any remedy does not extend to execution against or recovery out of any property of Makers or any of them other than the Collateral in any action to foreclose or to collect any amounts payable hereunder; (b) Makers shall be fully and personally liable, jointly and severally, for any and all costs, expenses and other sums payable to third parties (including, without limitation, attorney's fees and court costs) paid or incurred by Payee to enforce this Note, to protect or enforce Payee's security interest in the Collateral or otherwise to enforce the Security Agreement, or to enforce the Other Documents, together with interest thereon at the rate of ten percent per annum. This Note is executed to amend and restate in its entirety that certain Promissory Note (Secured by Security Agreement) dated September 4, 1995 in the original principal amount of $141,360.00 executed by Jerald L. Broussard and wife, Mary Catherine Broussard payable to the order of Payee (the "First Note"), the purpose of such amendment and restatement being, generally, to evidence the Makers' and the Payee's agreement to provide that the indebtedness evidenced hereby shall be non-recourse to the extent provided herein and in the Security Agreement. In order to induce Payee so to amend and restate the First Note according to the terms hereof, Makers hereby acknowledge and agree that the principal amount of $141,360.00, together with accrued, unpaid interest thereon is fully due and owing under the First Note, and that such amounts (both principal and accrued unpaid interest thereon) are fully valid and subsisting as of the date of execution hereof and are not subject to set-off, deduction, defense, or counterclaim of any kind whatsoever. Page 4 of 5 5 When the context requires, singular nouns and pronouns include the plural. EXECUTED the 30 day of DECEMBER, 1996 to be effective as of September 4, 1995. /s/ Jerald L. Broussard /s/ Mary C. Broussard - --------------------------------------- ------------------------------------- Jerald L. Broussard Mary Catherine Broussard Page 5 of 5 EX-10.5 5 AMENDED AND RESTATED PROMISSORY NOTE - RAWSON 1 EXHIBIT 10.5 AMENDED AND RESTATED PROMISSORY NOTE (THIS "NOTE") (SECURED BY SECURITY AGREEMENT) Effective Date: . . . . . . . . . . . . . . . . April 11, 1996 Makers: . . . . . . . . . . . . . . . . . . . . Richard G. Rawson and wife, Dawn Rawson 2902 Valley Manor Drive Kingwood, Harris County, Texas 77339; and RDKB Rawson, L.P., a Texas Family Limited Partnership 2902 Valley Manor Drive Kingwood, Harris County, Texas 77339 (collectively, the "Makers" and individually, a "Maker") Payee: . . . . . . . . . . . . . . . . . . . . . Administaff, Inc., a Delaware corporation (the "Payee") Place for Payment: . . . . . . . . . . . . . . . 19001 Crescent Springs Drive (including county) Kingwood, Montgomery County, Texas or any other place that Payee may designate in writing. Principal Amount: . . . . . . . . . . . . . . . . Three Hundred Thousand and No/100 Dollars ($300,000.00) Annual Interest Rate on Unpaid Principal from Date: . . . . . . . . . Six and 83/100 Percent (6.83%) Annual Interest Rate on Matured Unpaid Amounts: . . . . . . . . . . . Six and 83/100 Percent (6.83%)
Terms of Payment (principal and interest): The principal of this Note shall be due and payable in full on April 11, 2001. Interest shall be due and payable annually as interest accrues, beginning on April 11, 1997, and continuing regularly and annually thereafter on the 11th day of April of each year thereafter until April 11, 2001, when, as stated above, the entire principal balance of this Note, and all accrued, unpaid interest thereon shall be due and payable Page 1 of 5 2 in full. Interest installments shall be calculated on the unpaid principal balance from time to time outstanding hereunder, from the date following the last interest payment date through the date of payment. Security for Payment: A security interest created and granted in the following Amended and Restated Security Agreement (the "Security Agreement"): Date: . . . . . . . . . . . . . . . . . December , 1996 ------ Debtors: . . . . . . . . . . . . . . . Richard G. Rawson and wife, Dawn Rawson 2902 Valley Manor Drive Kingwood, Harris County, Texas 77339; and RDKB Rawson, L.P., a Texas Family Limited Partnership 2902 Valley Manor Drive Kingwood, Harris County, Texas 77339 Secured Party: . . . . . . . . . . . . Administaff, Inc. 19001 Crescent Springs Drive Kingwood, Montgomery County, Texas 77339 Collateral Location: . . . . . . . . . Secretary of Administaff, Inc. (including County) 19001 Crescent Springs Drive Kingwood, Montgomery County, Texas 77339 Collateral Description: . . . . . . . . Stock Certificate No. T 0013 (29,616 shares), No. T 0019 (220,500 shares), T 0025 (118,933 shares), T 0104 (25,769 shares) and No. T 0145 (19,434 shares) representing shares of common stock issued by Administaff, Inc., a Delaware corporation, and any and all stock certificate(s) issued in replacement, substitution, or redemption thereof or as a result of any share split or reverse share split, together with all proceeds thereof, all as more fully described in the Security Agreement.
Each Maker jointly and severally promises to pay to the order of Payee the principal balance of this Note and interest accrued thereon, at the place for payment and according to the terms of Page 2 of 5 3 payment and at the rates stated above. Makers shall have the right to prepay all or any portion of the outstanding principal balance of this Note. The holder of this Note may accelerate the maturity of a portion of the then outstanding principal balance of this Note if any part of the collateral securing payment of this Note is included in the initial public offering of securities of the issuer thereof. The portion of the outstanding principal balance hereof which may be accelerated is the portion which equals the actual sales price of the collateral sold in an arm's length transaction. This paragraph shall not limit the rights of the secured party under the Security Agreement or any other agreement or instrument executed as security for or otherwise in connection with this Note, whether now existing or hereafter executed (collectively, the "Other Documents"). If Makers default in the payment of this Note or under any term of the Security Agreement, or in the performance of any obligation under any of the Other Documents, and such default continues after the holder of this Note gives Makers notice of such default and the time within which it must be cured, as may be required by law or by written agreement, then the holder of this Note may, at its option, declare the unpaid principal balance hereof and accrued, unpaid interest thereon immediately due and payable in full without notice of any kind. Makers and each surety, endorser, and guarantor waive all demands for payment, presentations for payment, notices of intention to accelerate maturity, notices of acceleration of maturity, protests, notices of protests, and all other notices of whatever kind, to the extent permitted by law. If any one or more of this Note, the Security Agreement, or any of the Other Documents are given to an attorney for collection or enforcement, or if suit is brought for collection or enforcement, or if this Note is collected through probate, bankruptcy, or other judicial proceeding, then Makers shall pay the holder of this Note all costs of collection and enforcement, including reasonable attorney's fees and court costs of not less than 10% of the amount due under this Note, in addition to other amounts due. It is the intention of Makers and Payee to comply strictly with all applicable usury laws. Interest on the debt evidenced by this Note, however denominated, shall not exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, collected, or received under applicable law; any interest collected or received in excess of such maximum nonusurious amount shall be deemed a mistake and credited against the unpaid principal balance hereof then outstanding or, if the principal hereof has been repaid, refunded to Makers, and the effective interest rate and amount applicable to this Note shall automatically be reduced to the maximum nonusurious contract rate and amount allowed for this Note under applicable law. The foregoing provision shall override all demands and charges, the effect of all prepayments, and all contrary provisions, if any, in this Note, the Security Agreement and the Other Documents. Each Maker is jointly and severally responsible for all obligations set forth in this Note. Page 3 of 5 4 Notwithstanding anything contained herein, in the Security Agreement, the Other Documents or elsewhere to the contrary, except as specifically provided hereinafter in this paragraph, no judgment for the repayment of the indebtedness evidenced hereby or interest thereon will be enforced against the Makers or any of them personally or any property of the Makers or any of them other than the collateral furnished pursuant to the Security Agreement (the "Collateral") in any action to collect any amount payable hereunder or to enforce performance of any of the other provisions of the Security Agreement or any of the Other Documents; provided, however: (a) Nothing herein contained shall be construed as limiting or impairing enforcement against the Collateral or otherwise prohibiting Payee from exercising any and all remedies which this Note, the Security Agreement or the Other Documents permit, so long as the exercise of any remedy does not extend to execution against or recovery out of any property of Makers or any of them other than the Collateral in any action to foreclose or to collect any amounts payable hereunder; (b) Makers shall be fully and personally liable, jointly and severally, for any and all costs, expenses and other sums payable to third parties (including, without limitation, attorney's fees and court costs) paid or incurred by Payee to enforce this Note, to protect or enforce Payee's security interest in the Collateral or otherwise to enforce the Security Agreement, or to enforce the Other Documents, together with interest thereon at the rate of ten percent per annum. This Note is executed to amend and restate in its entirety that certain Promissory Note (Secured by Security Agreement) dated April 11, 1996 in the original principal amount of $300,000.00 executed by Richard G. Rawson and wife, Dawn Rawson payable to the order of Payee (the "First Note"), the purpose of such amendment and restatement being, generally, to evidence the Makers' and the Payee's agreement to add RDKB Rawson, L.P., a Texas Family Limited Partnership, as an obligor hereon, and to provide that the indebtedness evidenced hereby shall be non-recourse to the extent provided herein and in the Security Agreement. In order to induce Payee so to amend and restate the First Note according to the terms hereof, Makers hereby acknowledge and agree that the principal amount of $300,000.00, together with accrued interest thereon is fully due and owing under the First Note, and that such amounts (both principal and accrued unpaid interest thereon) are fully valid and subsisting as of the date of execution hereof and are not subject to set-off, deduction, defense, or counterclaim of any kind whatsoever. Page 4 of 5 5 When the context requires, singular nouns and pronouns include the plural. EXECUTED the 16 day of DECEMBER, 1996 to be effective as of April 11, 1996. /s/ Richard G. Rawson /s/ Dawn Rawson - -------------------------------------- -------------------------------------- Richard G. Rawson Dawn Rawson RDKB RAWSON L.P., a Texas Family Limited Partnership By: /s/ Richard G. Rawson, General Partner ------------------------------------------------- Richard G. Rawson, General Partner Page 5 of 5 EX-10.6 6 AMENDED AND RESTATED SECURITY AGREEMENT - RAWSON 1 EXHIBIT 10.6 AMENDED AND RESTATED SECURITY AGREEMENT - PLEDGE (AS THE SAME MAY BE AMENDED, MODIFIED OR SUPPLEMENTED FROM TIME TO TIME, THIS "AGREEMENT") Administaff, Inc., a Delaware corporation, whose address is 19001 Crescent Springs Drive, Kingwood, Montgomery County, Texas 77339 (herein referred to as "Secured Party"); and Richard G. Rawson and wife, Dawn Rawson (herein referred to collectively as the "Rawsons"), whose address is 2902 Valley Manor Drive, Kingwood, Harris County, Texas 77339, and RDKB Rawson L.P., a Texas Family Limited Partnership (herein referred to as the "Partnership," and together with the Rawson herein referred to collectively as "Debtors"), agree as follows: Section I. Creation of Security Interest. The Rawsons hereby jointly and severally grant a security interest in, and pledge, to Secured Party the "Rawson Collateral"(hereinafter defined) to secure the performance and payment by Debtors of any and all indebtedness and obligations now or hereafter owing by Debtors or any of them to Secured Party, including, without limitation, pursuant to or under (i) that certain Amended and Restated Promissory Note with effective date of June 22, 1995 in the original principal amount of $693,694.75 executed by Debtors payable to the order of Secured Party; (ii) that certain Amended and Restated Promissory Note with effective date of April 11, 1996 in the original principal amount of $300,000.00, also executed by Debtors payable to the order of Secured Party (the Amended and Restated Promissory Notes described in the foregoing clauses (i) and (ii) shall be herein referred to collectively as the "Promissory Notes"); (iii) this Agreement; and (iv) any and all "Other Documents" (hereinafter defined). The Partnership hereby grants a security interest in, and pledges, to Secured Party the "Partnership Collateral"(hereinafter defined) to secure the performance and payment by Debtors of any and all indebtedness and obligations now or hereafter owing by Debtors or any of them to Secured Party, including, without limitation, pursuant to or under (i) each of the Promissory Notes; (ii) this Agreement; and (iii) any and all Other Documents. The indebtedness and obligations of Debtors (or any of them) to Secured Party secured by this Agreement are referred to herein as the "secured indebtedness" or the "indebtedness secured hereby." The secured indebtedness includes, without limitation, any and all attorney's fees now or hereafter owing by Debtors to Secured Party. Section II. Collateral. 2.1 The collateral pledged by the Rawsons to Secured Party pursuant to the foregoing Section I hereof (herein collectively referred to as the "Rawson Collateral") consists of all shares of the common stock issued by Secured Party described in Exhibit "A" attached hereto (collectively, the "Rawson Shares"), together with any and all shares and other rights received by the Rawsons or Page 1 of 14 2 either of them from the issuer of the Rawson Shares in replacement, substitution, or redemption of the Rawson Shares or as a result of any share split or reverse share split, together with any and all proceeds thereof, as the term "proceeds" is defined by Article 9 of the Texas Business and Commerce Code. 2.2 The collateral pledged by the Partnership to Secured Party pursuant to the foregoing Section I hereof (herein collectively referred to as the "Partnership Collateral") consists of all shares of the common stock issued by Secured Party described in Exhibit "B" attached hereto (collectively, the "Partnership Shares"), together with any and all shares and other rights received by the Partnership from the issuer of the Partnership Shares in replacement, substitution, or redemption of the Rawson Shares or as a result of any share split or reverse share split, together with any and all proceeds thereof, as the term "proceeds" is defined by Article 9 of the Texas Business and Commerce Code. 2.3 The Rawson Collateral and the Partnership Collateral shall be herein collectively referred to as the "Collateral." 2.4 Each of the Debtors shall deliver all certificates or other instruments representing the Collateral to Secured Party, together with appropriate instruments of transfer executed in blank, to be held by Secured Party during the period that such items constitute Collateral under this Agreement. Section III. Payment Obligations of Debtors. Debtors hereby jointly and severally obligate themselves to pay to Secured Party on written demand delivered by Secured Party to Debtors all reasonable costs and expenses, including attorney's fees and other legal expenses incurred or paid by Secured Party in exercising or protecting its interests, rights and remedies under this Agreement, plus interest thereon from date of demand until paid at the rate of ten percent (10%) per annum. Section IV. Representations and Warranties. Debtors represent and warrant that: 4.1 The Collateral is free from all liens, claims, demands, equities or other security interests created or suffered by Debtors other than the interest created by this Agreement. 4.2 Debtors own the Collateral and have the right to pledge the same and to transfer any interest therein; all consents required for the pledge of the Collateral have been obtained; and Debtors warrant and will forever defend their title to the Collateral against the claims and demands of all persons whomsoever claiming or to claim the same or any part thereof. Page 2 of 14 3 4.3 The execution, delivery and performance by Debtors of this Agreement does not and will not contravene or violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect and applicable to Debtors or result in a breach of or constitute a default (with or without the giving of notice or the lapse of time or both) under any indenture or loan, credit or other agreement to which Debtors or any of them are or is a party or by which Debtors or any of Debtors' property may be bound or affected. 4.4 This Agreement constitutes the legal, valid and binding obligation of Debtors enforceable against Debtors in accordance with its terms. 4.5 No authorization, consent, approval, license, order or exemption of, or filing or registration with, any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, is or will be necessary to the valid execution, delivery or performance by Debtors of this Agreement or to the enforcement hereof by Secured Party. Section V. Covenants. 5.1 Debtors covenant and agree with Secured Party as follows: (a) Debtors will furnish to Secured Party such stock powers and other instruments as may reasonably be required by Secured Party to facilitate the transfer of the Collateral. (b) Debtors will cause to be paid prior to delinquency all taxes and assessments hereafter levied or assessed against the Collateral, or any part thereof, or against the Secured Party for or on account of the interest created by this Agreement. (c) If the validity of this Agreement, any provision hereof, or the priority of the security interest granted by this Agreement is challenged or questioned, or if any legal proceedings are instituted with respect thereto, Debtors will give prompt written notice thereof to Secured Party and, at Debtors' own cost and expense, will take all necessary and proper steps for the defense of such legal proceedings. (d) Debtors will, on request of Secured Party, (i) promptly correct any defect or error which may be discovered in any instrument or document executed by Debtors for the purpose of giving effect to this Agreement or of fulfilling the obligations of Debtors under this Agreement; (ii) execute, acknowledge, deliver and record or file such further instruments and documents (including financing statements and continuation statements) and do such further acts as may reasonably be necessary, desirable or proper to carry out more effectively the purposes of this Agreement; and (iii) Debtors will pay all reasonable costs connected with any of the foregoing. (e) Debtors will not sell, exchange, lend, assign, transfer or otherwise dispose of all or any part of the Collateral or any interest therein, or permit any of the foregoing, without the prior written consent of Secured Party. Page 3 of 14 4 (f) Debtors hereby obligate themselves, jointly and severally, to pay (or reimburse Secured Party) for all reasonable filing fees, taxes, brokerage fees and commissions, Uniform Commercial Code search fees, escrow fees, attorney's fees, and all other costs and expense of every character incurred by Secured Party in connection with this Agreement or the Collateral and will reimburse Secured Party for all such expenses incurred by it. Debtors hereby obligate themselves, jointly and severally, to pay (or reimburse Secured Party) for its reasonable expenses and expenditures, including reasonable attorney's fees and legal expenses, incurred or expended in connection with Secured Party's rightful exercise of its rights and remedies hereunder and/or Secured Party's protection of the Collateral and its security interest therein. Amounts to be paid hereunder by Debtors to Secured Party will be payable upon written demand from Secured Party delivered to Debtors and will bear interest from date of demand until paid at the rate of ten percent (10%) per annum. (g) Debtors will furnish to Secured Party such information as Secured Party may reasonably request with respect to the Collateral. 5.2 If Debtors fail to perform any act (including the payment of money) which this Agreement requires of Debtors, Secured Party, in Debtors' names or in its own name, may but is not obligated to perform or cause to be performed such act, and any expenses so incurred by Secured Party will be payable by Debtors upon written demand from Secured Party delivered to Debtors and will bear interest from date of demand until paid at the rate of ten percent (10%) per annum. Section VI. Voting Rights. Unless and until an "Event of Default" (hereinafter defined) occurs, Debtors are entitled to exercise all voting and consensual powers and rights relating to the Collateral or any part thereof for all purposes not inconsistent with the terms of this Agreement. Section VII. Event of Default. It will be an Event of Default under this Agreement if there occurs any default in Debtors' performance of their obligations under this Agreement or in the payment of any of the secured indebtedness when due or declared due which default is not cured within fifteen (15) days following Debtors' receipt of notice from Secured Party of such default (herein referred to as an "Event of Default"). Section VIII. Remedies in Event of Default. 8.1 Upon the occurrence of an Event of Default, and at any time thereafter if such Event of Default has not been cured, Secured Party may, after giving all notices required by law or this Agreement, sell the Collateral or any part thereof in accordance with all applicable laws and regulations at public or private sale or by sale at a broker's board or on a securities exchange. If (i) the Collateral is sold at public sale, or (ii) the Collateral is sold at a private sale and is of a type Page 4 of 14 5 customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, Secured Party may be the purchaser of the Collateral and may apply the purchase price therefor against the indebtedness secured hereby. Ten (10) days prior to any public sale of the Collateral or ten (10) days prior to the date after which the Collateral may be sold at private sale, Secured Party shall give to Debtors at the address set forth herein notice of Secured Party's intention to make such public or private sale. Such notice, in case of public sale, must state the time and place fixed for the sale, and in case of sale at a broker's board or on a securities exchange, must state the board or exchange at which such sale is to be made and the day on which the Collateral or that portion thereof so being sold will first be offered for sale at such board or exchange. Any such public sale will be held at such time or times, during ordinary business hours and at such place or places, as Secured Party may fix in the notice of such sale. At any sale the Collateral may be sold in one lot as an entirety or in separate parcels as Secured Party may determine. Secured Party will not be obligated to make any sale pursuant to any such notice. If any part of the Collateral is sold on credit or for future delivery, Secured Party will retain the Collateral so sold until the full purchase price is paid by the purchaser thereof. If such purchaser fails to pay for Collateral so sold, Secured Party may again act to sell the Collateral in compliance with this Agreement and applicable law. Each of the methods of disposition described in this Section are deemed to constitute disposition in a commercially reasonable manner. Notwithstanding anything to the contrary contained herein, the Federal Securities Act of 1933, as amended, other applicable federal and state laws and regulations, and conditions or limitations stated on the face or back of the certificates representing the Collateral may impose restrictions or limitations on Secured Party's ability to dispose of all or part of the Collateral in the enforcement of its rights and remedies hereunder. Therefore, upon the occurrence of an Event of Default, Secured Party is authorized to sell the Collateral or any part thereof at one or more private sales at which the prospective bidders and purchasers are restricted to persons who represent and warrant that they will purchase the Collateral or a portion thereof for investment for their own accounts and not with a view to distributing or reselling same, in a manner which will not require that the Collateral, or any part thereof, be registered in accordance with the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder, or any other law of regulations, at the best price reasonably obtainable by Secured Party at any such private sale or other disposition in the manner mentioned above. Debtors agree (i) that if the Secured Party sells the Collateral, or any portion thereof, at a private sale or sales under this Section, Secured Party will have the right to rely upon the advice and opinion of any member firm of a national securities exchange as to the best price reasonably obtainable therefor upon such a private sale, and (ii) that in the absence of fraud, sale of the Collateral or portion thereof at such price will be conclusive evidence that Secured Party obtained the reasonable fair market value. 8.2 Upon the occurrence of an Event of Default, and at any time thereafter, Secured Party shall have the rights of a secured party after default under the Texas Business and Commerce Code, as modified by this Agreement. In connection with the exercise of those rights or of any other rights of Secured Party granted by this Agreement: Page 5 of 14 6 (a) written notice given to Debtors as provided herein ten (10) days prior to the date of public sale of the Collateral or prior to the date after which private sale of the Collateral will be made constitutes reasonable notice; (b) so long as any portion of the secured indebtedness remains outstanding, sale by Secured Party of less than the whole of the Collateral will not exhaust the rights of Secured Party hereunder, and Secured Party may make successive sales hereunder until the whole of the Collateral shall be sold; and (c) Secured Party may appoint or delegate any one or more persons as its agent to perform any act or acts necessary or incident to any sale held by Secured party, including the sending of notices and the conduct of sale, but in the name and on behalf of Secured Party. 8.3 The remedies provided for in this Agreement are cumulative of all remedies provided for in any other agreement securing payment of the secured indebtedness and all other applicable remedies existing at law or in equity, and resort to any remedy provided for in this Agreement or under any other agreement or by law will not prevent the concurrent or subsequent employment of any other appropriate remedy or remedies. 8.4 Secured Party may resort to any security given by this Agreement or to any other security now existing or hereafter given to secure the payment of the secured indebtedness, in whole or in part, and in such portions and in such order as may seem best to Secured Party, and no such action will in any manner be considered as a waiver of any of the rights, benefits or security interest evidenced by this Agreement. Section IX. Additional Agreements. 9.1 Upon the payment and performance in full of the secured indebtedness, all of Secured Party's rights under this Agreement will terminate, the Collateral will automatically be released from the security interest evidenced hereby, and all documents and instruments filed in any public office for the perfection of such security interest will be released, canceled and terminated by Secured Party in due form at Debtors' cost. 9.2 Secured Party may waive any default without waiving any other prior or subsequent default. Secured Party may remedy any default without waiving the default remedied. Failure alone by Secured Party to exercise any right, power or remedy upon any default may not be construed as a waiver of such default or as a waiver of the right to exercise any such right, power or remedy at a later date. No single or partial exercise by Secured Party of any right, power or remedy hereunder will, without more, exhaust the same or will preclude any other or further exercise thereof. No modification or waiver of any provision hereof nor consent to any departure by Debtors therefrom will be effective unless the same is in writing and signed by Secured Party and then such waiver or consent will be effective only in the specific instances, for the purpose for which given and to the extent therein specified. Acceptance by Secured Party of any payment in an amount less than the Page 6 of 14 7 amount then due on any secured indebtedness will be deemed an acceptance on account only and will not in any way affect the existence of a default hereunder. 9.3 Secured Party may at any time and from time to time in writing (i) waive compliance by Debtors with any covenant herein made by Debtors to the extent and in the manner specified in such writing; (ii) release any part of the Collateral, or any interest therein, from the security interest of this Agreement; or (iii) release any party liable, either directly or indirectly, for the secured indebtedness or for any covenant herein or in any other instrument now or hereafter securing the payment of the secured indebtedness without impairing or releasing the liability of any other party. No such act will in any way impair the rights of Secured Party hereunder or impair or release the liability of any party except to the extent specifically agreed by Secured Party in such writing. 9.4 The security interest and other rights of Secured Party hereunder will not be impaired by any indulgence, moratorium or release granted by Secured Party, including but not limited to (i) any renewal, extension or modification which Secured Party may grant with respect to any secured indebtedness; (ii) any surrender, compromise, release, renewal, extension, exchange or substitution which Secured Party may grant in respect of any item of the Collateral, or any part thereof or any interest therein, or (iii) any release or indulgence granted to any endorser, guarantor or surety of any secured indebtedness. 9.5 A carbon, photographic or other reproduction of this Agreement or of any financing statement relating to this Agreement will be sufficient as a financing statement. 9.6 If ownership of the Collateral or any part thereof becomes vested in a person other than Debtors, Secured Party may, without notice to Debtors, deal with such successor or successors in interest with reference to this Agreement and to the indebtedness secured hereby in the same manner as with Debtors; provided, however, that the foregoing shall not limit, diminish, alter or otherwise affect Debtors' covenants set forth in Section 5.1(e) hereinabove. No sale of the Collateral, no forbearance on the part of Secured Party and no extension of the time for the payment of the indebtedness secured hereby given by Secured Party will operate to release, discharge, modify, change or affect, in whole or in part, the liability of Debtors or any other person for the payment of the indebtedness secured hereby, except as set forth in Section X hereinbelow. 9.7 Any notices, offers, approvals and other communications hereunder must be in writing and, except when receipt is required to start the running of a period of time, will be deemed given the second day after its mailing by one party by certified or registered United States mail, postage prepaid and return receipt requested, to the other party addressed as set forth in the first paragraph of this Agreement. Any writing which may be mailed pursuant to the foregoing may also be delivered by hand or transmitted by telegraph, telex or telecopier and will be effective when received by the addressee. Either party may, from time to time, specify as its address for purposes of this Agreement any other address by giving ten (10) days' prior written notice thereof to the other party. Page 7 of 14 8 9.8 This Agreement is binding upon and inures to the benefit of Secured Party, Debtors, their respective successors, heirs and assigns. 9.9 If any term or provision of this Agreement or the application hereof to any person or circumstance is invalid or unenforceable to any extent, the remainder of this Agreement will not be affected thereby, and each term and provision of this Agreement will be valid and in force to the fullest extent permitted by law. 9.10 Secured Party may, at any time after the occurrence of an Event of Default, personally or by an agent designated by it, execute, sign, endorse, transfer or deliver in the name of Debtors, notes, checks, drafts or other instruments for the payment of money and receipts or any other documents necessary to evidence, perfect and realize upon the security interests and obligations of this Agreement. Any third party acting in good faith may rely on the affidavit of Secured Party that an Event of Default has occurred for all purposes under this Agreement and is released by Debtors from and against any claim by Debtors for any action undertaken in such reliance. 9.11 Secured Party's duty with respect to the care and custody of the Collateral is solely to use reasonable care in this custody and preservation of the Collateral in Secured Party's possession. Secured Party will not be responsible in any way for any depreciation in the value of the Collateral, nor does any duty or responsibility whatsoever rest upon Secured Party to act to preserve rights against prior parties or to enforce collection of the Collateral by legal proceedings or otherwise, the duty of the Secured Party being solely to receive collections, remittances and payments on such Collateral as and when made to Secured Party. If Debtors instruct Secured Party, in writing or orally, to deliver any or all of the Collateral to a broker or other third person, and Secured Party agrees to do so, the following conditions are deemed conclusively to be a part of Secured Party's agreement, whether or not they are specifically mentioned to Debtors at the time of such agreement: (i) Secured Party assumes no responsibility for verifying the genuineness or authenticity of the authority of any person purporting to be a messenger, employee or representative of the broker or other third person to whom Debtors have directed Secured Party to deliver the Collateral, or the genuineness or authenticity of any document of instructions delivered by any such person; (ii) by requesting any such delivery, Debtors will be considered to have assumed all risk of loss as to the Collateral; (iii) Secured Party's sole responsibility will be to deliver the Collateral to the person purporting to be the broker or other third person described by Debtors, or a messenger, employee or representative thereof, and (iv) Secured Party and Debtors expressly agree that compliance with the foregoing by Secured Party constitutes reasonable care. 9.12 The headings of the various subdivisions of this Agreement are for convenience of reference only and do not define or limit any of the terms or provisions hereof. All pronouns are deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons referred to may require. Terms used in this Agreement which are defined in the Texas Business and Commerce Code are used with the meanings as therein defined. 9.13 All obligations of Debtors hereunder shall be joint and several. Page 8 of 14 9 9.14 This Agreement is governed by and will be construed in accordance with the laws of the State of Texas and when and where applicable, the laws of the United States of America. 9.15 It is the intention of Debtors and Secured Party to comply strictly with all applicable usury laws. Interest on the indebtedness secured hereby, however denominated, shall not exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, collected, or received under applicable law; any interest collected or received in excess of such maximum nonusurious amount shall be deemed a mistake and credited against the unpaid principal balance then outstanding of the indebtedness secured hereby or, if such indebtedness has been repaid in full, refunded to Debtors, and the effective interest rate shall automatically be reduced to the maximum nonusurious contract rate and amount allowed for such indebtedness under applicable law. This provision shall override all demands and charges, the effect of all prepayments, and all contrary provisions in this Agreement, the instruments which evidence the indebtedness secured hereby, and any and all other instruments, documents, or other agreements executed as security for such indebtedness or otherwise in connection therewith, whether now existing or hereafter executed. Section X. Nonrecourse Obligation. Notwithstanding anything contained in this Agreement or elsewhere to the contrary, except as specifically provided hereinafter in this Section X, no judgment for the repayment of the indebtedness secured hereby or interest thereon will be enforced against the Debtors or either of them personally or any property of the Debtors or either of them other than the Collateral in any action to collect any amount payable hereunder or to enforce performance of any of the other provisions of this Agreement; provided, however: (a) Nothing herein contained shall be construed as limiting or impairing the enforcement against the Collateral or otherwise prohibiting Secured Party from exercising any and all remedies which this Agreement or any other document, instrument or other agreement executed as security for or otherwise in connection with the indebtedness secured hereby (herein referred to collectively as the "Other Documents") permit, so long as the exercise of any remedy does not extend to execution against or recovery out of any property of Debtors or any of them other than the Collateral in any action to foreclose the security interest and pledge hereof or to collect any secured hereunder; (b) Debtors shall be fully and personally liable, jointly and severally, for any and all costs, expenses and other sums payable to third parties (including, without limitation, attorney's fees and court costs) paid or incurred by Secured to enforce the indebtedness secured hereby, to protect or enforce Secured Party's security interest in the Collateral or otherwise to enforce its rights under or pursuant to this Agreement, or to enforce its rights under or pursuant to any one or more of the Other Documents. Page 9 of 14 10 Section XI. Amendment and Restatement. Without any in anyway limiting the grant set forth in Section I hereinabove, this Agreement is executed, in part, to amend and restate in its entirety that certain Security Agreement-Pledge effective June 22, 1995, as amended prior to the date hereof, including, without limitation, by that certain Substitution of Collateral and Ratification effective as of October 19, 1995 among the Rawsons, the Partnership and the Secured Party (as so amended, the "First Security Agreement"). In order to induce Secured Party to amend and restate the First Security Agreement according to the terms hereof, Debtors hereby acknowledge and agree (i) that as of the date hereof the liens, pledge and security interests (collectively, the "Security Interests") granted in the First Security Agreement are fully valid and subsisting as first priority Security Interests securing the indebtedness secured hereby, including, without limitation, the Promissory Notes, and hereby ratify and confirm the same, (ii) that the Security Interests are not released or extinguished hereby or are subject to any defense or counterclaim of any kind whatsoever, and (iii) that the Security Interests are continued and carried forward by this Agreement and shall remain in full force and effect as security for the indebtedness secured hereby, including, without limitation, the Promissory Notes, pursuant to the terms and provisions of this Agreement. EXECUTED on the dates of the acknowledgments below, to be effective as of December 16, 1996. SECURED PARTY: ADMINISTAFF, INC. By: /s/ Paul J. Sarvadi --------------------------------------- Paul J. Sarvadi, President and Chief Executive Officer DEBTOR: /s/ Richard G. Rawson ------------------------------------------ Richard G. Rawson DEBTOR: /s/ Dawn Rawson ------------------------------------------ Dawn Rawson Page 10 of 14 11 DEBTOR: RDKB RAWSON L.P., a Texas Family Limited Partnership By: /s/ Richard G. Rawson --------------------------------------- Richard G. Rawson, General Partner STATE OF TEXAS ) ) COUNTY OF MONTGOMERY ) This instrument was acknowledged before me on the 16th day of December, 1996, by Paul J. Sarvadi, President and Chief Executive Officer of Administaff, Inc., a Texas corporation, on behalf of said corporation. /s/ Linda F. Perry ------------------------------------------ Notary Public, State of Texas ------------------------------------------ (Stamped or Printed Name of Notary) My Commission Expires: December 11, 1999 STATE OF TEXAS ) ) COUNTY OF MONTGOMERY ) This instrument was acknowledged before me on the 16th day of December, 1996, by Richard G. Rawson. /s/ Linda F. Perry ------------------------------------------ Notary Public, State of Texas ------------------------------------------ (Stamped or Printed Name of Notary) My Commission Expires: December 11, 1999 Page 11 of 14 12 STATE OF TEXAS ) ) COUNTY OF MONTGOMERY ) This instrument was acknowledged before me on the 16th day of December, 1996, by Dawn Rawson. /s/ Linda F. Perry -------------------------------------- Notary Public, State of Texas -------------------------------------- (Stamped or Printed Name of Notary) My Commission Expires: December 11, 1999 STATE OF TEXAS ) ) COUNTY OF MONTGOMERY ) This instrument was acknowledged before me on the 16th day of December, 1996, by Richard G. Rawson, General Partner of RDKB Rawson L.P., a Texas Family Limited Partnership, on behalf of said partnership. /s/ Linda F. Perry -------------------------------------- Notary Public, State of Texas -------------------------------------- (Stamped or Printed Name of Notary) My Commission Expires: December 11, 1999 Page 12 of 14 13 EXHIBIT A TO AMENDED AND RESTATED SECURITY AGREEMENT - PLEDGE DATED AS OF DECEMBER 16, 1996 EXECUTED BY RICHARD G. RAWSON, DAWN RAWSON AND RDKB RAWSON L.P., AS DEBTORS, AND ADMINISTAFF, INC. AS SECURED PARTY RAWSON COLLATERAL Certificate No. T 0104 for Twenty-Five Thousand Seven Hundred Sixty-Nine (25,769) shares of the common stock issued by Administaff, Inc., a Delaware corporation ("Administaff") and Certificate No. T 0145 for Nineteen Thousand Four Hundred Thirty-Four (19,434) shares of the common stock issued by Administaff, each of said certificates being registered in the name of Richard G. Rawson. Page 13 of 14 14 EXHIBIT B TO AMENDED AND RESTATED SECURITY AGREEMENT - PLEDGE DATED AS OF DECEMBER 16, 1996 EXECUTED BY RICHARD G. RAWSON, DAWN RAWSON AND RDKB RAWSON L.P., AS DEBTORS, AND ADMINISTAFF, INC. AS SECURED PARTY PARTNERSHIP COLLATERAL Certificate No. T 0013 for Twenty-Nine Thousand Six Hundred Sixteen (29,616) shares of the common stock issued by Administaff, Inc., a Delaware corporation ("Administaff"), Certificate No. T 0019 for Two Hundred Twenty Thousand Five Hundred (220,500) shares of the common stock issued by Administaff, and Certificate No. T 0025 for One Hundred Eighteen Thousand Nine Hundred Thirty-Three (118,933) shares of the common stock issued by Administaff, each of said certificates being registered in the name of RDKB Rawson L.P. Page 14 of 14 EX-10.7 7 AMENDED AND RESTATED AGREEMENT-PLEDGE - BROUSSARD 1 EXHIBIT 10.7 AMENDED AND RESTATED SECURITY AGREEMENT - PLEDGE (AS THE SAME MAY BE AMENDED, MODIFIED OR SUPPLEMENTED FROM TIME TO TIME, THIS "AGREEMENT") Administaff, Inc., a Delaware corporation, whose address is 19001 Crescent Springs Drive, Kingwood, Montgomery County, Texas 77339 (herein referred to as "Secured Party"); and Jerald L. Broussard and wife, Mary Catherine Broussard, whose address is 707 Masters Way, Kingwood, Harris County, Texas 77339 (herein referred to collectively as "Debtors"), agree as follows: Section I. Creation of Security Interest. The Debtors hereby jointly and severally grant a security interest in, and pledge, to Secured Party the "Collateral" (hereinafter defined) to secure the performance and payment by Debtors of any and all indebtedness and obligations now or hereafter owing by Debtors or either of them to Secured Party, including, without limitation, pursuant to or under (i) that certain Amended and Restated Promissory Note with effective date of September 4, 1995 in the original principal amount of $141,360.00 executed by Debtors payable to the order of Secured Party (the "Promissory Note"); (ii) this Agreement; and (iii) any and all "Other Documents" (hereinafter defined). The indebtedness and obligations of Debtors (or either of them) to Secured Party secured by this Agreement are referred to herein as the "secured indebtedness" or the "indebtedness secured hereby." The secured indebtedness includes, without limitation, any and all attorney's fees now or hereafter owing by Debtors to Secured Party. Section II. Collateral. 2.1 The collateral pledged by the Debtors to Secured Party pursuant to the foregoing Section I hereof (herein collectively referred to as the "Collateral") consists of all shares of the common stock issued by Secured Party described in Exhibit "A" attached hereto (collectively, the "Shares"), together with any and all shares and other rights received by the Debtors or either of them from the issuer of the Shares in replacement, substitution, or redemption of the Shares or as a result of any share split or reverse share split, together with any and all proceeds thereof, as the term "proceeds" is defined by Article 9 of the Texas Business and Commerce Code. 2.2 Each of the Debtors shall deliver all certificates or other instruments representing the Collateral to Secured Party, together with appropriate instruments of transfer executed in blank, to be held by Secured Party during the period that such items constitute Collateral under this Agreement. Page 1 of 12 2 Section III. Payment Obligations of Debtors. Debtors hereby jointly and severally obligate themselves to pay to Secured Party on written demand delivered by Secured Party to Debtors all reasonable costs and expenses, including attorney's fees and other legal expenses incurred or paid by Secured Party in exercising or protecting its interests, rights and remedies under this Agreement, plus interest thereon from date of demand until paid at the rate of ten percent (10%) per annum. Section IV. Representations and Warranties. Debtors represent and warrant that: 4.1 The Collateral is free from all liens, claims, demands, equities or other security interests created or suffered by Debtors other than the interest created by this Agreement. 4.2 Debtors own the Collateral and have the right to pledge the same and to transfer any interest therein; all consents required for the pledge of the Collateral have been obtained; and Debtors warrant and will forever defend their title to the Collateral against the claims and demands of all persons whomsoever claiming or to claim the same or any part thereof. 4.3 The execution, delivery and performance by Debtors of this Agreement does not and will not contravene or violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect and applicable to Debtors or result in a breach of or constitute a default (with or without the giving of notice or the lapse of time or both) under any indenture or loan, credit or other agreement to which Debtors or either of them are or is a party or by which Debtors or any of Debtors' property may be bound or affected. 4.4 This Agreement constitutes the legal, valid and binding obligation of Debtors enforceable against Debtors in accordance with its terms. 4.5 No authorization, consent, approval, license, order or exemption of, or filing or registration with, any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, is or will be necessary to the valid execution, delivery or performance by Debtors of this Agreement or to the enforcement hereof by Secured Party. Section V. Covenants. 5.1 Debtors covenant and agree with Secured Party as follows: (a) Debtors will furnish to Secured Party such stock powers and other instruments as may reasonably be required by Secured Party to facilitate the transfer of the Collateral. Page 2 of 12 3 (b) Debtors will cause to be paid prior to delinquency all taxes and assessments hereafter levied or assessed against the Collateral, or any part thereof, or against the Secured Party for or on account of the interest created by this Agreement. (c) If the validity of this Agreement, any provision hereof, or the priority of the security interest granted by this Agreement is challenged or questioned, or if any legal proceedings are instituted with respect thereto, Debtors will give prompt written notice thereof to Secured Party and, at Debtors' own cost and expense, will take all necessary and proper steps for the defense of such legal proceedings. (d) Debtors will, on request of Secured Party, (i) promptly correct any defect or error which may be discovered in any instrument or document executed by Debtors for the purpose of giving effect to this Agreement or of fulfilling the obligations of Debtors under this Agreement; (ii) execute, acknowledge, deliver and record or file such further instruments and documents (including financing statements and continuation statements) and do such further acts as may reasonably be necessary, desirable or proper to carry out more effectively the purposes of this Agreement; and (iii) Debtors will pay all reasonable costs connected with any of the foregoing. (e) Debtors will not sell, exchange, lend, assign, transfer or otherwise dispose of all or any part of the Collateral or any interest therein, or permit any of the foregoing, without the prior written consent of Secured Party. (f) Debtors hereby obligate themselves, jointly and severally, to pay (or reimburse Secured Party) for all reasonable filing fees, taxes, brokerage fees and commissions, Uniform Commercial Code search fees, escrow fees, attorney's fees, and all other costs and expense of every character incurred by Secured Party in connection with this Agreement or the Collateral and will reimburse Secured Party for all such expenses incurred by it. Debtors hereby obligate themselves, jointly and severally, to pay (or reimburse Secured Party) for its reasonable expenses and expenditures, including reasonable attorney's fees and legal expenses, incurred or expended in connection with Secured Party's rightful exercise of its rights and remedies hereunder and/or Secured Party's protection of the Collateral and its security interest therein. Amounts to be paid hereunder by Debtors to Secured Party will be payable upon written demand from Secured Party delivered to Debtors and will bear interest from date of demand until paid at the rate of ten percent (10%) per annum. (g) Debtors will furnish to Secured Party such information as Secured Party may reasonably request with respect to the Collateral. 5.2 If Debtors fail to perform any act (including the payment of money) which this Agreement requires of Debtors, Secured Party, in Debtors' names or in its own name, may but is not obligated to perform or cause to be performed such act, and any expenses so incurred by Secured Party will be payable by Debtors upon written demand from Secured Party delivered to Debtors and will bear interest from date of demand until paid at the rate of ten percent (10%) per annum. Page 3 of 12 4 Section VI. Voting Rights. Unless and until an "Event of Default" (hereinafter defined) occurs, Debtors are entitled to exercise all voting and consensual powers and rights relating to the Collateral or any part thereof for all purposes not inconsistent with the terms of this Agreement. Section VII. Event of Default. It will be an Event of Default under this Agreement if there occurs any default in Debtors' performance of their obligations under this Agreement or in the payment of any of the secured indebtedness when due or declared due which default is not cured within fifteen (15) days following Debtors' receipt of notice from Secured Party of such default (herein referred to as an "Event of Default"). Section VIII. Remedies in Event of Default. 8.1 Upon the occurrence of an Event of Default, and at any time thereafter if such Event of Default has not been cured, Secured Party may, after giving all notices required by law or this Agreement, sell the Collateral or any part thereof in accordance with all applicable laws and regulations at public or private sale or by sale at a broker's board or on a securities exchange. If (i) the Collateral is sold at public sale, or (ii) the Collateral is sold at a private sale and is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, Secured Party may be the purchaser of the Collateral and may apply the purchase price therefor against the indebtedness secured hereby. Ten (10) days prior to any public sale of the Collateral or ten (10) days prior to the date after which the Collateral may be sold at private sale, Secured Party shall give to Debtors at the address set forth herein notice of Secured Party's intention to make such public or private sale. Such notice, in case of public sale, must state the time and place fixed for the sale, and in case of sale at a broker's board or on a securities exchange, must state the board or exchange at which such sale is to be made and the day on which the Collateral or that portion thereof so being sold will first be offered for sale at such board or exchange. Any such public sale will be held at such time or times, during ordinary business hours and at such place or places, as Secured Party may fix in the notice of such sale. At any sale the Collateral may be sold in one lot as an entirety or in separate parcels as Secured Party may determine. Secured Party will not be obligated to make any sale pursuant to any such notice. If any part of the Collateral is sold on credit or for future delivery, Secured Party will retain the Collateral so sold until the full purchase price is paid by the purchaser thereof. If such purchaser fails to pay for Collateral so sold, Secured Party may again act to sell the Collateral in compliance with this Agreement and applicable law. Each of the methods of disposition described in this Section are deemed to constitute disposition in a commercially reasonable manner. Notwithstanding anything to the contrary contained herein, the Federal Securities Act of 1933, as amended, other applicable federal and state laws and regulations, and conditions or limitations stated on the face or back of the certificates representing the Collateral may impose restrictions or limitations on Secured Party's ability to dispose of all or part of the Collateral in the enforcement of its rights and remedies Page 4 of 12 5 hereunder. Therefore, upon the occurrence of an Event of Default, Secured Party is authorized to sell the Collateral or any part thereof at one or more private sales at which the prospective bidders and purchasers are restricted to persons who represent and warrant that they will purchase the Collateral or a portion thereof for investment for their own accounts and not with a view to distributing or reselling same, in a manner which will not require that the Collateral, or any part thereof, be registered in accordance with the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder, or any other law of regulations, at the best price reasonably obtainable by Secured Party at any such private sale or other disposition in the manner mentioned above. Debtors agree (i) that if the Secured Party sells the Collateral, or any portion thereof, at a private sale or sales under this Section, Secured Party will have the right to rely upon the advice and opinion of any member firm of a national securities exchange as to the best price reasonably obtainable therefor upon such a private sale, and (ii) that in the absence of fraud, sale of the Collateral or portion thereof at such price will be conclusive evidence that Secured Party obtained the reasonable fair market value. 8.2 Upon the occurrence of an Event of Default, and at any time thereafter, Secured Party shall have the rights of a secured party after default under the Texas Business and Commerce Code, as modified by this Agreement. In connection with the exercise of those rights or of any other rights of Secured Party granted by this Agreement: (a) written notice given to Debtors as provided herein ten (10) days prior to the date of public sale of the Collateral or prior to the date after which private sale of the Collateral will be made constitutes reasonable notice; (b) so long as any portion of the secured indebtedness remains outstanding, sale by Secured Party of less than the whole of the Collateral will not exhaust the rights of Secured Party hereunder, and Secured Party may make successive sales hereunder until the whole of the Collateral shall be sold; and (c) Secured Party may appoint or delegate any one or more persons as its agent to perform any act or acts necessary or incident to any sale held by Secured party, including the sending of notices and the conduct of sale, but in the name and on behalf of Secured Party. 8.3 The remedies provided for in this Agreement are cumulative of all remedies provided for in any other agreement securing payment of the secured indebtedness and all other applicable remedies existing at law or in equity, and resort to any remedy provided for in this Agreement or under any other agreement or by law will not prevent the concurrent or subsequent employment of any other appropriate remedy or remedies. 8.4 Secured Party may resort to any security given by this Agreement or to any other security now existing or hereafter given to secure the payment of the secured indebtedness, in whole or in part, and in such portions and in such order as may seem best to Secured Party, and no such Page 5 of 12 6 action will in any manner be considered as a waiver of any of the rights, benefits or security interest evidenced by this Agreement. Section IX. Additional Agreements. 9.1 Upon the payment and performance in full of the secured indebtedness, all of Secured Party's rights under this Agreement will terminate, the Collateral will automatically be released from the security interest evidenced hereby, and all documents and instruments filed in any public office for the perfection of such security interest will be released, canceled and terminated by Secured Party in due form at Debtors' cost. 9.2 Secured Party may waive any default without waiving any other prior or subsequent default. Secured Party may remedy any default without waiving the default remedied. Failure alone by Secured Party to exercise any right, power or remedy upon any default may not be construed as a waiver of such default or as a waiver of the right to exercise any such right, power or remedy at a later date. No single or partial exercise by Secured Party of any right, power or remedy hereunder will, without more, exhaust the same or will preclude any other or further exercise thereof. No modification or waiver of any provision hereof nor consent to any departure by Debtors therefrom will be effective unless the same is in writing and signed by Secured Party and then such waiver or consent will be effective only in the specific instances, for the purpose for which given and to the extent therein specified. Acceptance by Secured Party of any payment in an amount less than the amount then due on any secured indebtedness will be deemed an acceptance on account only and will not in any way affect the existence of a default hereunder. 9.3 Secured Party may at any time and from time to time in writing (i) waive compliance by Debtors with any covenant herein made by Debtors to the extent and in the manner specified in such writing; (ii) release any part of the Collateral, or any interest therein, from the security interest of this Agreement; or (iii) release any party liable, either directly or indirectly, for the secured indebtedness or for any covenant herein or in any other instrument now or hereafter securing the payment of the secured indebtedness without impairing or releasing the liability of any other party. No such act will in any way impair the rights of Secured Party hereunder or impair or release the liability of any party except to the extent specifically agreed by Secured Party in such writing. 9.4 The security interest and other rights of Secured Party hereunder will not be impaired by any indulgence, moratorium or release granted by Secured Party, including but not limited to (i) any renewal, extension or modification which Secured Party may grant with respect to any secured indebtedness; (ii) any surrender, compromise, release, renewal, extension, exchange or substitution which Secured Party may grant in respect of any item of the Collateral, or any part thereof or any interest therein, or (iii) any release or indulgence granted to any endorser, guarantor or surety of any secured indebtedness. 9.5 A carbon, photographic or other reproduction of this Agreement or of any financing statement relating to this Agreement will be sufficient as a financing statement. Page 6 of 12 7 9.6 If ownership of the Collateral or any part thereof becomes vested in a person other than Debtors, Secured Party may, without notice to Debtors, deal with such successor or successors in interest with reference to this Agreement and to the indebtedness secured hereby in the same manner as with Debtors; provided, however, that the foregoing shall not limit, diminish, alter or otherwise affect Debtors' covenants set forth in Section 5.1(e) hereinabove. No sale of the Collateral, no forbearance on the part of Secured Party and no extension of the time for the payment of the indebtedness secured hereby given by Secured Party will operate to release, discharge, modify, change or affect, in whole or in part, the liability of Debtors or any other person for the payment of the indebtedness secured hereby, except as set forth in Section X hereinbelow. 9.7 Any notices, offers, approvals and other communications hereunder must be in writing and, except when receipt is required to start the running of a period of time, will be deemed given the second day after its mailing by one party by certified or registered United States mail, postage prepaid and return receipt requested, to the other party addressed as set forth in the first paragraph of this Agreement. Any writing which may be mailed pursuant to the foregoing may also be delivered by hand or transmitted by telegraph, telex or telecopier and will be effective when received by the addressee. Either party may, from time to time, specify as its address for purposes of this Agreement any other address by giving ten (10) days' prior written notice thereof to the other party. 9.8 This Agreement is binding upon and inures to the benefit of Secured Party and Debtors and their respective heirs and assigns. 9.9 If any term or provision of this Agreement or the application hereof to any person or circumstance is invalid or unenforceable to any extent, the remainder of this Agreement will not be affected thereby, and each term and provision of this Agreement will be valid and in force to the fullest extent permitted by law. 9.10 Secured Party may, at any time after the occurrence of an Event of Default, personally or by an agent designated by it, execute, sign, endorse, transfer or deliver in the name of Debtors, notes, checks, drafts or other instruments for the payment of money and receipts or any other documents necessary to evidence, perfect and realize upon the security interests and obligations of this Agreement. Any third party acting in good faith may rely on the affidavit of Secured Party that an Event of Default has occurred for all purposes under this Agreement and is released by Debtors from and against any claim by Debtors for any action undertaken in such reliance. 9.11 Secured Party's duty with respect to the care and custody of the Collateral is solely to use reasonable care in this custody and preservation of the Collateral in Secured Party's possession. Secured Party will not be responsible in any way for any depreciation in the value of the Collateral, nor does any duty or responsibility whatsoever rest upon Secured Party to act to preserve rights against prior parties or to enforce collection of the Collateral by legal proceedings or otherwise, the duty of the Secured Party being solely to receive collections, remittances and payments on such Collateral as and when made to Secured Party. If Debtors instruct Secured Party, Page 7 of 12 8 in writing or orally, to deliver any or all of the Collateral to a broker or other third person, and Secured Party agrees to do so, the following conditions are deemed conclusively to be a part of Secured Party's agreement, whether or not they are specifically mentioned to Debtors at the time of such agreement: (i) Secured Party assumes no responsibility for verifying the genuineness or authenticity of the authority of any person purporting to be a messenger, employee or representative of the broker or other third person to whom Debtors have directed Secured Party to deliver the Collateral, or the genuineness or authenticity of any document of instructions delivered by any such person; (ii) by requesting any such delivery, Debtors will be considered to have assumed all risk of loss as to the Collateral; (iii) Secured Party's sole responsibility will be to deliver the Collateral to the person purporting to be the broker or other third person described by Debtors, or a messenger, employee or representative thereof, and (iv) Secured Party and Debtors expressly agree that compliance with the foregoing by Secured Party constitutes reasonable care. 9.12 The headings of the various subdivisions of this Agreement are for convenience of reference only and do not define or limit any of the terms or provisions hereof. All pronouns are deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons referred to may require. Terms used in this Agreement which are defined in the Texas Business and Commerce Code are used with the meanings as therein defined. 9.13 All obligations of Debtors hereunder shall be joint and several. 9.14 This Agreement is governed by and will be construed in accordance with the laws of the State of Texas and when and where applicable, the laws of the United States of America. 9.15 It is the intention of Debtors and Secured Party to comply strictly with all applicable usury laws. Interest on the indebtedness secured hereby, however denominated, shall not exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, collected, or received under applicable law; any interest collected or received in excess of such maximum nonusurious amount shall be deemed a mistake and credited against the unpaid principal balance then outstanding of the indebtedness secured hereby or, if such indebtedness has been repaid in full, refunded to Debtors, and the effective interest rate shall automatically be reduced to the maximum nonusurious contract rate and amount allowed for such indebtedness under applicable law. This provision shall override all demands and charges, the effect of all prepayments, and all contrary provisions in this Agreement, the instruments which evidence the indebtedness secured hereby, and any and all other instruments, documents, or other agreements executed as security for such indebtedness or otherwise in connection therewith, whether now existing or hereafter executed. Section X. Nonrecourse Obligation. Notwithstanding anything contained in this Agreement or elsewhere to the contrary, except as specifically provided hereinafter in this Section X, no judgment for the repayment of the indebtedness secured hereby or interest thereon will be enforced against the Debtors or either of them personally or any property of the Debtors or either of them other than the Collateral in any Page 8 of 12 9 action to collect any amount payable hereunder or to enforce performance of any of the other provisions of this Agreement; provided, however: (a) Nothing herein contained shall be construed as limiting or impairing the enforcement against the Collateral or otherwise prohibiting Secured Party from exercising any and all remedies which this Agreement or any other document, instrument or other agreement executed as security for or otherwise in connection with the indebtedness secured hereby (herein referred to collectively as the "Other Documents") permit, so long as the exercise of any remedy does not extend to execution against or recovery out of any property of Debtors or any of them other than the Collateral in any action to foreclose the security interest and pledge hereof or to collect any secured hereunder; (b) Debtors shall be fully and personally liable, jointly and severally, for any and all costs, expenses and other sums payable to third parties (including, without limitation, attorney's fees and court costs) paid or incurred by Secured to enforce the indebtedness secured hereby, to protect or enforce Secured Party's security interest in the Collateral or otherwise to enforce its rights under or pursuant to this Agreement, or to enforce its rights under or pursuant to any one or more of the Other Documents. Section XI. Amendment and Restatement. Without any in anyway limiting the grant set forth in Section I hereinabove, this Agreement is executed to amend and restate in its entirety that certain Security Agreement-Pledge effective as of September 4, 1995, as amended prior to the date hereof, including, without limitation, by that certain Substitution of Collateral and Ratification effective as of October 19, 1995 among the Debtors and Secured Party (as so amended, the "First Security Agreement"). In order to induce Secured Party to amend and restate the First Security Agreement according to the terms hereof, Debtors hereby acknowledge and agree (i) that as of the date hereof the liens, pledge and security interests (collectively, the "Security Interests") granted in the First Security Agreement are fully valid and subsisting as first priority Security Interests securing the indebtedness secured hereby, including, without limitation, the Promissory Note, and hereby ratify and confirm the same, (ii) that the Security Interests are not released or extinguished hereby or are subject to any defense or counterclaim of any kind whatsoever, and (iii) that the Security Interests are continued and carried forward by this Agreement and shall remain in full force and effect as security for the indebtedness secured hereby, including, without limitation, the Promissory Note, pursuant to the terms and provisions of this Agreement. Page 9 of 12 10 EXECUTED on the dates of the acknowledgments below, to be effective as of December 16, 1996. SECURED PARTY: ADMINISTAFF, INC. By: /s/ Paul J. Sarvadi ------------------------------------ Paul J. Sarvadi, President and Chief Executive Officer DEBTOR: /s/ Jerald L. Broussard --------------------------------------- Jerald L. Broussard DEBTOR: /s/ Mary C. Broussard --------------------------------------- Mary Catherine Broussard STATE OF TEXAS ) ) COUNTY OF MONTGOMERY ) This instrument was acknowledged before me on the 30th day of December, 1996, by Paul J. Sarvadi, President and Chief Executive Officer of Administaff, Inc., a Texas corporation, on behalf of said corporation. /s/ Linda F. Perry --------------------------------------- Notary Public, State of Texas --------------------------------------- (Stamped or Printed Name of Notary) My Commission Expires: December 11, 1999 Page 10 of 12 11 STATE OF TEXAS ) ) COUNTY OF MONTGOMERY ) This instrument was acknowledged before me on the 30th day of December, 1996, by Jerald L. Broussard. /s/ Karen C. Pawlik --------------------------------------- Notary Public, State of Texas --------------------------------------- (Stamped or Printed Name of Notary) My Commission Expires: April 26, 1999 STATE OF TEXAS ) ) COUNTY OF MONTGOMERY ) This instrument was acknowledged before me on the 30th day of December, 1996, by Mary Catherine Broussard. /s/ Karen C. Pawlik --------------------------------------- Notary Public, State of Texas --------------------------------------- (Stamped or Printed Name of Notary) My Commission Expires: April 26, 1999 Page 11 of 12 12 EXHIBIT A TO AMENDED AND RESTATED SECURITY AGREEMENT - PLEDGE DATED AS OF DECEMBER _______, 1996 EXECUTED BY JERALD L. BROUSSARD AND MARY CATHERINE BROUSSARD AS DEBTORS AND ADMINISTAFF, INC. AS SECURED PARTY SHARES Certificate No. T 0133 for Three Thousand Three Hundred Thirty-Three (3,333) shares of the common stock issued by Administaff, Inc., a Delaware corporation ("Administaff"); Certificate No. T 0067 for Ten Thousand (10,000) shares of the common stock issued by Administaff; Certificate No. T 0068 for Ten Thousand (10,000) shares of the common stock issued by Administaff; Certificate No. T. 0069 for Six Thousand Six Hundred Sixty-Seven (6,667) shares of the common stock issued by Administaff; Certificate No. T. 0070 for Five Thousand (5,000) shares of the common Stock issued by Administaff; and Certificate No. T 0071 for Five Thousand (5,000) shares of the common stock issued by Administaff Page 12 of 12 EX-10.8 8 1995 ADMINISTAFF STOCK OPTION PLAN 1 1995 ADMINISTAFF STOCK OPTION PLAN (as Amended and Restated) 1. Purpose The purpose of this 1995 Administaff Stock Option Plan (this "Plan") is to further the growth and development of Administaff, Inc. (the "Company") and its subsidiaries by providing, through ownership of stock of the Company, an additional incentive to key employees of the Company and its subsidiaries and the nonemployee directors of the Company to devote their best efforts to the financial success of the Company, and to encourage them to continue their services to the Company and, where applicable, its subsidiaries. 2. Stock Options Under this Plan, options may be granted to purchase the Company's common stock, which options may qualify as "incentive stock options" under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), or as nonqualified options. As used in this Plan, the term "options" shall include Director Options (as defined hereafter), as the context requires. 3. Administration 3.1 Administration by Board Subject to Section 3.2, this Plan shall be administered by the Board of Directors of the Company (the "Board"). Subject to the provisions of this Plan, the Board shall have authority to construe and interpret this Plan, to promulgate, amend, and rescind rules and regulations relating to its administration, from time to time to select from among the eligible employees (as determined pursuant to Section 4) of the Company and its subsidiaries those employees to whom rights will be granted, to determine the timing and manner of the grant of options to employees, to determine the exercise price and the number of shares covered by and all of the terms of the options (other than Director Options), to determine the duration and purpose of leaves of absence which may be granted to employees without constituting termination of their employment for purposes of this Plan, and to make all of the determinations necessary or advisable for administration of this Plan. The Board shall be charged with the authority and responsibility to interpret the provisions of this Plan, and any agreement issued and executed under this Plan. No member of the Board shall be liable for any action or determination undertaken or made in good faith with respect to this Plan or any agreement executed pursuant to this Plan. 3.2 Administration by Committee The Board may, in its sole discretion, delegate any or all of its administrative duties to a committee (the "Committee") of not less than three members of the Board, to be appointed by and serve at the pleasure of the Board. From time to time, the Board may increase or decrease (to not less than three members) the size of the Committee, and add additional members to, or remove members from, the Committee. The Committee shall act pursuant to a majority vote, or the written consent of a majority of its members, and minutes shall be kept of all of its meetings and copies thereof shall be provided to the Board. Subject to the provisions of this Plan and the directions of the Board, the Committee may establish and follow such rules and regulations for the conduct of its business as it may deem advisable. No member of the Committee shall be liable for any action or determination undertaken or made in good faith with respect to this Plan or any option agreement executed pursuant to this Plan. 4. Eligibility The class of employees eligible to receive options under this Plan is any employee (including any officer who is an employee) of the Company or any of its subsidiaries (as defined in Section 424 of the Code), provided, however, that no employee shall be eligible to receive incentive stock options under this Plan if such individual, at the time the incentive stock option is granted, owns stock possessing more than 10 percent of the total combined voting power of all classes of stock of -1- 2 the Company or the parent corporation or any subsidiary of the Company, unless at the time such incentive stock option is granted the option price is at least 110 percent of the fair market value of the stock subject to the incentive stock option and such incentive stock option by its terms is not exercisable after the expiration of five years after the date such incentive stock option is granted. An employee may receive multiple rights under this Plan. Notwithstanding the foregoing, a director of the Company who is not also (i) an employee of the Company or a subsidiary or (ii) an employee, director, officer, partner, principal or affiliate of Texas Growth Fund, Pyramid Ventures Inc., or any of their respective controlling persons (a "Director") shall automatically receive grants of nonqualified options under this Plan as provided in Section 6.1 ("Director Options"). 5. Shares Subject to Options The stock available for grant of options under this Plan shall be shares of the Company's authorized but unissued, or reacquired, common stock, as now or hereafter constituted ("common stock"). The aggregate number of shares which may be issued pursuant to exercise of options granted under this Plan shall not exceed 357,957shares of common stock (subject to adjustment as herein provided). In the event that any outstanding option under this Plan for any reason expires or is terminated, the shares of common stock allocable to the unexercised portion of the option shall again be available for options under this Plan as if no option had been granted with respect to such shares. 6. Terms and Conditions of Options Options granted under this Plan shall be evidenced by agreements (which need not be identical) in such form and containing such provisions that are consistent with this Plan as the Board or Committee shall from time to time approve, including a designation as to whether such option (if not a Director Option) is intended to be an incentive stock option or a nonqualified option. Each option agreement shall specify the number of shares subject to the option. Such agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions: 6.1 Automatic Director Options (a) Initial Grants. Each Director who serves in such capacity on April 23, 1996 shall automatically receive on such date a Director Option for 7,500 shares of common stock. In addition, each Director who is elected or appointed to the Board for the first time after April 23, 1996 shall automatically receive, on the date of his or her election or appointment, a Director Option for 7,500 shares of common stock. A Director Option granted pursuant to this Section 6.1(a) shall become vested (exercisable) as to one-third of the shares subject to the option on each anniversary of the option's date of grant; provided, however, if the Director ceases to be a member of the Board due to death or disability prior to such third anniversary, the Director Option shall be immediately 100% vested. (b) Annual Grants. On each Annual Meeting of the Stockholders that this Plan is in effect (commencing with the 1996 meeting), each Director who is in office immediately after such meeting shall automatically receive a Director Option for 2,500 shares of common stock, which shall be 100% vested on the date of grant. (c) In the event that the number of shares of common stock available for grants under this Plan is insufficient to make all automatic Director Option grants provided for in this Section 6.1 on the applicable date, then all Directors who are entitled to a grant on such date shall share ratably in the number of shares then available for grant under this Plan, and shall have no right to receive a grant with respect to the deficiencies in the number of available shares and all future grants under this Section 6.1 shall terminate. (d) Each Director Option will be subject to all of the limitations contained in the following provisions of this Section 6. -2- 3 6.2 Option Price The purchase price for the shares subject to any option shall be the fair market value for such shares at the time the option is granted, determined in good faith by the Board or the Committee, or, with respect to incentive stock options granted to a more than 10% holder as provided in Section 4, 110% of such fair market value. 6.3 Medium and Time of Payment The purchase price for any shares purchased pursuant to exercise of an option granted under this Plan shall be paid in full upon exercise of the option in cash, or by check acceptable to the Company, or, at the discretion of the Board or the Committee, upon such other terms and conditions not inconsistent, where applicable, with the qualification of the option as an "incentive stock option" under Section 422 of the Code, as the Board or the Committee shall approve. Notwithstanding the foregoing, the Company may, in its sole discretion, extend and maintain, or arrange for the extension and maintenance of, credit to any optionee to finance the optionee's purchase of shares pursuant to exercise of any option, on such terms as may be approved by the Board or Committee, subject to applicable regulations of the Federal Reserve Board and any other laws or regulations in effect at the time such credit is extended. 6.4 Term of Option No option shall be exercisable after the expiration of the earlier of (a) ten (10) years after the date the option is granted, or (b) with respect to an option that is not a Director Option, three months following the date the optionee's employment with the Company and its subsidiaries terminates for any reason, with or without cause, or (c) with respect to a Director Option, three years following the date the Director ceases to be a member of the Board, unless the Director is removed for cause in which event the period shall be three months from such removal date. Notwithstanding, the foregoing, in the discretion of the Board or the Committee, the option agreement for any option, other than a Director Option, may provide for a shorter or longer term during which the option may be exercised following termination of employment, but not for a period longer than that permitted by (a) above. To the extent an option is not vested on the date the optionee ceases to be an employee of the Company and its subsidiaries, or a member of the Board, as the case may be, such option shall be immediately forfeited unexercised on such termination date. 6.5 Exercise of Option No option shall be exercisable during the lifetime of any optionee by any person other than the optionee. Subject to the foregoing and any other applicable provisions of this Plan, the Board or the Committee shall have the power to set the time or times within which each option, other than a Director Option, shall be exercisable and to accelerate the time or times of exercise, including the vesting schedule, if any, and the events or circumstances resulting in the acceleration of any vesting schedule applicable to the purchase of shares pursuant to any grant of options, other than a Director Option, under this Plan. All options subject to a vesting schedule which are vested shall be exercisable upon vesting, and from time to time thereafter at the election of the optionee, until expiration of the term of the option. To the extent that an optionee has the right to exercise an option and purchase shares pursuant thereto, the option may be exercised by written notice delivered to the Company. In such written notice, the optionee shall state the number of shares being purchased (but not less than ten shares) and the notice shall be accompanied by payment in full of the purchase price for such shares. 6.6 No Transfer of Option No option shall be transferable by an optionee otherwise than by will or the laws of descent and distribution. 6.7 Restrictions Upon Issuance of Shares The issuance of options and shares under this Plan shall be subject to compliance with all of the applicable requirements of law with respect to the issuance and sale of securities, including, without limitation, any required qualification under the Securities Act of 1933, as amended, and The Securities Act of the State of Texas, as amended. In -3- 4 addition, any shares issued pursuant to this Plan may, at the election of the Board or Committee granting the options, be subject to other restrictions, grants of first refusal rights and other limitations on transfer of shares acquired pursuant to options granted such as limitations in the event of death, acquisition by a shareholder's spouse upon divorce, termination of employment and transfers to third parties, in each case for such price and upon such terms as may be determined by the Board or Committee at the time of grant of the options. 6.8 Investment Representation Unless the option is being exercised as a result of a public offering of shares of common stock of the Company, at which time the shares subject to the option are being registered for purposes of making a public offering of such shares, the Company may require, as a condition of issuance of shares covered by the option, that the optionee represent that the shares to be acquired pursuant to exercise of the option are being acquired for investment purposes only and without a view to the reoffer or redistribution thereof. The Company may place a legend on the certificate evidencing the shares reflecting the fact that the shares were acquired for investment and cannot be sold or transferred unless registered under the Securities Act of 1933, as amended, and applicable state securities laws, or unless counsel for the Company is satisfied that the circumstances of the proposed transfer do not require such registration. 6.9 Rights as a Shareholder or Employee An optionee shall have no rights as a shareholder of the Company with respect to any shares covered by any option until the date of the issuance of a share certificate for such shares. No adjustment shall be made for dividends (ordinary or extraordinary, whether cash, securities, or other property other than stock of the Company) or distributions or other rights for which the record date prior to the date such share certificate is issued, except as otherwise specifically provided in this Plan. Nothing in this Plan or in any option agreement shall confer upon any employee any right to continue in the employ of the Company or any of its subsidiaries or interfere in any way with any right of the Company or any subsidiary to terminate the optionee's employment at any time. 6.10 No Fractional Shares In no event shall the Company be required to issue fractional shares upon the exercise of any option. 6.11 Recapitalization or Reorganization of Company Except as otherwise provided herein, appropriate and proportionate adjustments shall be made in the number and class of shares subject to this Plan, and the exercise price of options, in the event of a stock dividend (but only on common stock), stock split, reverse stock split, reorganization, merger, consolidation, or like change in the capital structure of the Company. To the extent that the foregoing adjustments relate to stock or securities of the Company, such adjustments shall be made by the Board or the Committee, the determination of which in that respect shall be final, binding, and conclusive, provided that each option granted pursuant to the Plan shall not be adjusted in a manner that causes the option to fail to continue to qualify as an "incentive stock option" within the meaning of Section 422 of the Code. 6.12 Modification, Extension, and Renewal of Rights Subject to the terms and conditions and within the limitations of this Plan, the Board or Committee may modify, extend, or renew outstanding rights granted under this Plan, or accept the surrender of outstanding rights (to the extent not theretofore exercised). The Board or Committee shall not, however, modify any outstanding (i) incentive stock option in any manner which would cause the option not to qualify as an "incentive stock option" within the meaning of Section 422 of the Code or (ii) Director Option if such modification would cause the Director Option to no longer satisfy the requirements of SEC Rule 16b-3. Notwithstanding the foregoing, no modification of an option shall, without the consent of the optionee, alter or impair any rights of the optionee under the option. 7. Termination or Amendment of Plan -4- 5 The Board may at any time terminate or amend this Plan; provided that, without approval of the shareholders of the Company, there shall be, except by operation of the provisions of Section 6.11, no increase in the total number of shares covered by this Plan, no change in the class of persons eligible to receive options granted under this Plan, no reduction in the exercise price of options granted under this Plan, and no extension of the latest date upon which options may be exercised; and provided further that (i) without the consent of the optionee, no amendment may adversely affect any then outstanding right or any unexercised portion thereof, (ii) the provisions of Section 6.1 may not be amended more than once every six months other than to comport with changes in the Code or the Employee Retirement Income Security Act of 1974, as amended, or the regulations thereunder. 8. Indemnification In addition to such other rights of indemnification as they may have as members of the Board or the Committee, the members of the Board or the Committee administering this Plan shall be indemnified by the Company against reasonable expenses, including attorney's fees, actually and necessarily incurred in connection with the defense of any action, suit, or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with this Plan or any right granted thereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any action, suit, or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit, or proceeding that such member is liable for negligence or misconduct in the performance of his duties, provided that within 60 days after institution of any such action, suit, or proceeding, the member shall in writing offer the Company the opportunity, at its own expense, to handle and defend the same. 9. Effective Date and Term of Plan Unless approved by the stockholders of the Company within 12 months of the date it is adopted by the Board, this Plan amendment and restatement shall not be effective and in no event shall any Director Option granted hereunder be exercisable prior to the date this amendment is approved by the stockholders and, if not approved by the stockholders within such 12-month period, this amendment and restatement shall be void ab initio and all Director Options granted pursuant to it shall be automatically canceled unexercised. Unless sooner terminated by the Board in its sole and absolute discretion, the Plan will terminate on the tenth anniversary of its effective date. -5- EX-11.1 9 STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS 1 EXHIBIT 11.1 STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS OF ADMINISTAFF, INC.
Nine Months Ended Year Ended December 31, September 30, ---------------------------------------- ----------------- 1991 1992 1993 1994 1995 1995 1996 ---------------------------------------- ----------------- (In thousands, except for per share data) Primary Average shares outstanding 6,375 8,527 8,685 9,680 10,498 10,420 10,726 Net effect of dilutive stock options - based on the treasury stock method using average market price - - 99 130 170 196 65 Net effect of dilutive stock warrants - based on the treasury stock method using average market price - - - 32 109 102 82 Net effect of dilutive stock warrants - based on the if-converted method - - - 441 * * * Adjustment to give effect to shares optioned to employees within 12 months of the initial filing as outstanding as of the beginning of each period presented based on the treasury stock method using estimated market price upon offering 64 64 64 64 40 49 - --------------------------------------- --------------- Total 6,439 8,591 8,848 10,347 10,817 10,767 10,873 ======================================= =============== Net income $70 $33 $1,949 $3,766 $1,116 $617 $1,054 Add interest from subordinated debt, net of taxes - - - 92 * * * Preferred stock dividends (10) (10) - - - - - --------------------------------------- --------------- Net income available for common shareholders $60 $23 $1,949 $3,858 $1,116 $617 $1,054 ======================================= =============== Per share amount $0.01 $0.00 $0.22 $0.37 $0.10 $0.06 $0.10 ======================================= =============== Fully Diluted Average shares outstanding 6,375 8,527 8,685 9,680 10,498 10,420 10,726 Net effect of dilutive stock options - based on the treasury stock method using ending market price - - 216 256 213 269 65 Net effect of dilutive stock warrants - based on the treasury stock method using ending market price - - - 55 124 124 82 Net effect of dilutive stock warrants - based on the if-converted method - - - 441 * * * Adjustment to give effect to shares optioned to employees within 12 months of the initial filing as outstanding as of the beginning of each period presented based on the treasury stock method using estimated market price upon offering 64 64 64 63 24 27 - Assumed conversion of convertible preferred stock 20 20 13 - - - - --------------------------------------- --------------- Total 6,459 8,611 8,978 10,495 10,859 10,840 10,873 ======================================= =============== Net income $70 $33 $1,949 $3,766 $1,116 $617 $1,054 Add interest from subordinated debt, net of taxes - - - 92 * * * --------------------------------------- --------------- Net income available for common shareholders $70 $33 $1,949 $3,858 $1,116 $617 $1,054 ======================================= =============== Per share amount $0.01 $0.00 $0.22 $0.37 $0.10 $0.06 $0.10 ======================================= ===============
* Conversion of the stock warrants is not assumed in the computation because its effect is antidilutive. EX-23.2 10 CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 23.2 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" and to the use of our report dated March 1, 1996, in Amendment No. 4 to the Registration Statement (Form S-1 No. 33-96952) and related Prospectus of Administaff, Inc. for the registration of 3,000,000 shares of its common stock. /s/ ERNST & YOUNG LLP ERNST & YOUNG LLP Houston, Texas January 3, 1997 EX-24.5 11 POWER OF ATTORNEY OF JACK FIELDS 1 EXHIBIT 24.5 POWER OF ATTORNEY Know all men by these presents, that Jack Fields constitutes and appoints Paul J. Sarvadi and Richard G. Rawson (with full power to each to act alone) as his true and lawful attorney-in-fact and agent, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign, execute and file the Registration Statement of Administaff, Inc. under the Securities Act of 1933, as amended (the "Securities Act") and any or all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statements filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought), with all exhibits and any and all other documents required to be filed with respect thereto, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with all other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, thereby ratifying the 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 hereof. IN WITNESS WHEREOF, this Power of Attorney has been executed by the undersigned on January 2, 1997. /s/ JACK FIELDS -------------------------------------- Jack Fields EX-27 12 FINANCIAL DATA SCHEDULE
5 1,000 YEAR 9-MOS DEC-31-1995 DEC-31-1996 JAN-01-1995 JAN-01-1996 DEC-31-1995 SEP-30-1996 6,460 9,594 728 0 14,770 18,065 0 0 0 0 28,238 30,002 11,137 14,396 2,008 2,950 39,474 45,134 23,501 26,699 0 0 0 0 0 0 107 107 10,582 11,196 39,474 45,134 716,210 635,252 716,210 635,252 687,337 609,127 687,337 609,127 26,643 23,594 0 0 713 747 2,185 1,527 1,069 913 1,116 614 0 0 0 0 0 0 1,116 614 0.10 0.06 0.10 0.06
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