<PAGE>
As filed with the Securities and Exchange Commission on October 31, 1995
Registration No. 33-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
Staff Builders, Inc.
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(Exact name of Registrant as specified in its charter)
Delaware 11-2650500
--------------------- ---------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1983 Marcus Avenue, Lake Success, New York 11042
-----------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Staff Builders, Inc. 1993 Employee Stock Purchase Plan
--------------------------------------------------------------------------
(Full title of the plan)
Stephen Savitsky
Chairman of the Board, President
and Chief Executive Officer
Staff Builders, Inc.
1983 Marcus Avenue
Lake Success, New York 11042
-------------------------------------------
(Name and address of agent for service)
(516) 358-1000
------------------------
(Telephone number, including area code, of agent for service)
Copy to:
Floyd I. Wittlin, Esq.
Richards & O'Neil,LLP
885 Third Avenue
New York, New York 10022-4873
(212) 207-1200
-------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registra-
registered registered(1) per share(2) price(2) tion fee(3)
- ---------- ------------- ------------ -------- ---------
<S> <C> <C> <C> <C>
Class A
Common Stock, 1,000,000 shares $4.75 $4,750,000 $1,637.93
par value
$.01 per share
</TABLE>
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement also covers such
additional indeterminate number of shares as may be issuable with
respect to such shares pursuant to the anti-dilution provisions of the
Staff Builders, Inc. 1993 Employee Stock Purchase Plan, as amended
(the "Plan").
(2) The proposed maximum aggregate offering price, estimated solely for
the purpose of calculating the registration fee, has been computed
pursuant to Rule 457(h) promulgated under the Securities Act and is
based on the offering price of $4.75 per share which is the average
of the high and low prices of Staff Builders, Inc.'s Common Stock, par
value $.01 per share (the "Common Stock"), on October 26, 1995, as
quoted on the National Association of Securities Dealers Automated
Quotation National Market System.
(3) Previously, Staff Builders, Inc. filed a Registration Statement on
Form S-8 (Registration No. 68498) by which 1,000,000 shares of Common
Stock were registered pursuant to the Plan (the "Prior Registration
Statement"). Simultaneously with the filing of this Registration
Statement, Staff Builders, Inc. is withdrawing the Prior
Registration Statement. A registration fee of $1,181.66 was previously
paid with respect to the Prior Registration Statement. Pursuant to
Rule 429 of the Securities Act, Staff Builders, Inc. has applied such
previously paid fee to the amount of this registration fee, leaving
a balance of $456.27.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document or documents containing the information specified in Part
I are not required to be filed by Staff Builders, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") as part of this Form S-8
Registration Statement (the "Registration Statement").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been previously filed by the Company with
the Commission and are incorporated as of their respective dates in this
Registration Statement by reference:
a. The Company's annual report on Form 10-K, as amended, for the
fiscal year ended February 28, 1995.
b. The Company's quarterly reports on Form 10-Q for the quarters
ended May 31, 1995 and August 31, 1995.
c. The description of the Company's Class A Common Stock, par value
$.01 per share (the "Class A Common Stock"), contained in its Registration
Statement on Form 8-A, as amended by Amendment No. 1 to the Registration
Statement on Form 8-A of the Company, which was declared effective on
October 26, 1995.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") after the date of this Registration Statement and
prior to such time as the Company files a post-effective amendment to this
Registration Statement indicating that all securities offered hereby have been
sold, or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation of the Company, as amended,
provides that (i) the Company shall, to the fullest extent permitted by Section
145 of the Delaware General Corporation Law ("Section 145"), indemnify all
persons whom it may indemnify pursuant thereto and (ii) the personal liability
of the directors of the Company is eliminated to the fullest extent permitted by
Section 102(b)(7) of the Delaware General Corporation Law ("Section 102(b)(7)").
The Company has entered into separate indemnification agreements with certain of
its officers to the same effect.
Section 145 permits the Company to indemnify any person who was or is
a party or is threatened to be made party to a threatened, pending or completed
administrative, investigative, civil or criminal action, suit or proceeding
(other than an action by or in the right of the registrant in question) by
reason of the fact that he is or was a director, officer, employee or agent of
the registrant, or is or was serving at the request of the registrant as a
director, officer, employee or agent of another company, partnership, joint
venture, trust or "other enterprise", against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement he actually and
reasonably incurred in connection with such an 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 such registrant (and, in the case of a criminal
action or proceeding, had no reason to believe his conduct was unlawful). In
the case of an action by or in the right of the Company, he may not be
indemnified in respect of any claim, issue or matter as to which he was adjudged
liable to the Company unless and only to the extent that the court determines
that he is fairly and reasonably entitled to indemnity for such expenses as the
court shall deem proper.
Payment may be made in advance of the final disposition of any civil,
criminal, administrative or investigative action, suit or proceeding if the
officer or director agrees to repay to the Company such amount in the event it
is determined that he was not entitled to it. Indemnification against expenses
(including attorneys' fees) actually and reasonably incurred must be given under
Section 145 to the extent an officer, director, employee or agent is successful
in an action described above.
In addition, Section 145 permits the Company to purchase and maintain
insurance on behalf of any officer, director, employee and agent of the Company
or any person serving at the request of the Company as an officer, director,
employee or agent of
<PAGE>
another corporation serving as described above whether or not the Company would
have the power to indemnify him under Section 145. The Company maintains
directors and officers liability insurance for all duly elected or appointed
officers and directors of the Company.
Section 102(b)(7) permits the Company to eliminate or limit the
personal liability of a director to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (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, or (iv) for any transaction from which the director
derived an improper personal benefit.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company, pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following exhibits are filed (except where otherwise indicated) as
part of this Registration Statement:
EXHIBIT NO. DESCRIPTION
4.1 Restated Certificate of Incorporation of the Company,
filed July 11, 1988 (incorporated by reference to Exhibit
3.1 of the Company's Form 10-K for the fiscal year ended
February 28, 1995).
4.2 Certificate of Amendment to the Restated Certificate of
Incorporation of the Company, filed August 22, 1991
(incorporated by reference to Exhibit 3.2 of the Company's
Registration Statement on Form S-1 (File No. 33-43728)
filed with the Commission on January 29, 1992.
4.3 Certificate of Amendment to the Restated Certificate of
Incorporation of the Company, filed September 3, 1992
(incorporated by reference to Exhibit 3.3 of the
<PAGE>
Company's Form 10-K for the fiscal year ended February
28, 1995).
4.4 Certificate of Retirement of Stock of the Company, filed
February 28, 1994 (incorporated by reference to Exhibit 3.4
of the Company's Form 10-K for the fiscal year ended
February 28, 1994).
4.5 Certificate of Retirement of Stock of the Company, filed
June 3, 1994 (incorporated by reference to Exhibit 3.5
of the Company's Form 10-K for the fiscal year ended
February 28, 1995).
4.6 Certificate of Designation, Rights and Preferences of the
Class A Preferred Stock of the Company, filed June 6, 1994
(incorporated by reference to Exhibit 3.6 of the Company's
Form 10-K for the fiscal year ended February 28, 1995).
4.7 Certificate of Amendment of Restated Certificate of
Incorporation of the Company, filed August 23, 1994
(incorporated by reference to Exhibit 3.7 of the Company's
Form 10-K for the fiscal year ended February 28, 1995).
4.8 Amended and Restated By-Laws of the Company (incorporated
by reference to Exhibit 3.8 of the Company's Form 10-K
for the fiscal year ended February 28, 1995).
4.9 1993 Employee Stock Purchase Plan, as amended.
4.10 Form of Subscription Agreement under the 1993 Employee
Stock Purchase Plan, as amended.
5 Opinion of Richards & O'Neil, LLP as to the legality of the
securities being registered.
23.1 Consent of Deloitte & Touche to the incorporation by
reference in this Registration Statement of their report
on the financial statements included in the Company's
annual report on Form 10-K/A for the fiscal year ended
February 28, 1995.
23.2 Consent of Richards & O'Neil, LLP (included in the opinion
filed as Exhibit 5).
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total value of
securities offered would not exceed that which was
registered) and any deviation from the low or high and
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
<PAGE>
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-
effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Commission such indemnification is against public
policy as expressed in the Securities 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 Securities Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on this 26th day of
October, 1995.
STAFF BUILDERS, INC.
By:/S/ STEPHEN SAVITSKY
---------------------------------
Stephen Savitsky
Chairman of the Board,
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Stephen Savitsky Chairman of the Board, October 26, 1995
----------------------- President and Chief
Stephen Savitsky Executive Officer (principal
executive officer)
/s/ David Savitsky Executive Vice President, October 26, 1995
----------------------- Chief Operating Officer,
David Savitsky Secretary, Treasurer, and
Director
/s/ Gary Tighe Senior Vice President, October 26, 1995
----------------------- Finance and Chief Financial
Gary Tighe Officer (principal financial
officer and principal
accounting officer)
<PAGE>
Signature Title Date
--------- ----- ----
/s/ Bernard J. Firestone Director October 26, 1995
---------------------------
Bernard J. Firestone, Ph.D.
/s/ Jonathan J. Halpert Director October 26, 1995
---------------------------
Jonathan J. Halpert, Ph.D.
/s/ Donald Meyers Director October 26, 1995
---------------------------
Donald Meyers
<PAGE>
EXHIBIT INDEX
Location of
Exhibit No. Description of Exhibit Exhibit
----------- ---------------------- ----------------
4.1 Restated Certificate of Incorporated by
Incorporation of the reference.
Company, filed July 11,
1988.
4.2 Certificate of Amendment Incorporated by
to the Restated reference.
Certificate of
Incorporation of the
Company, filed August 22,
1991.
4.3 Certificate of Amendment Incorporated by
to the Restated reference.
Certificate of
Incorporation of the
Company, filed September
3, 1992.
4.4 Certificate of Retirement Incorporated by
of Stock of the Company, reference.
filed February 28, 1994.
4.5 Certificate of Retirement Incorporated by
of Stock of the Company, reference.
filed June 3, 1994.
4.6 Certificate of Designation, Incorporated by
Rights and Preferences of the reference.
Class A Preferred Stock of
the Company, filed June 6,
1994.
4.7 Certificate of Amendment of Incorporated by
Restated Certificate of reference.
Incorporation of the Company,
filed August 23, 1994.
4.8 Amended and Restated By- Incorporated by
Laws of the Company. reference.
4.9 1993 Employee Stock
Purchase Plan, as amended.
4.10 Form of Subscription
Agreement under the 1993
Employee Stock Purchase
Plan, as amended.
<PAGE>
Location of
Exhibit No. Description of Exhibit Exhibit
----------- ---------------------- ----------------
5 Opinion of Richards &
O'Neil, LLP as to the legality
of the securities being
registered.
23.1 Consent of Deloitte &
Touche to the
incorporation by reference
in this Registration
Statement of their report
on the financial
statements included in the
Company's annual report on
Form 10-K/A for the fiscal
year ended February 28,
1995.
23.2 Consent of Richards & Incorporated by
O'Neil, LLP (included in the reference.
opinion filed as Exhibit
5).
<PAGE>
EXHIBIT 4.9
STAFF BUILDERS, INC.
1993 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 1993 Employee Stock
Purchase Plan of Staff Builders, Inc.
1. PURPOSE. The purpose of the Plan is to provide employees of the Company
and its Subsidiaries with an opportunity to purchase Common Stock of the Company
through accumulated payroll deductions. It is the intention of the Company to
have the Plan qualify as an "Employee Stock Purchase Plan" under Section 423 of
the Internal Revenue Code of 1986, as amended. The provisions of the Plan,
accordingly, shall be construed so as to extend and limit participation in a
manner consistent with the requirements of that section of the Code.
2. DEFINITIONS.
(a) "BOARD" shall mean the Board of Directors of the Company.
(b) "CODE" shall mean the Internal Revenue Code of 1986, as amended.
(c) "COMMITTEE" shall mean the Compensation and Stock Option Committee of
the Company.
(d) "COMMON STOCK" shall mean the Class A Common Stock of the Company, par
value $.01 per share.
(e) "Company" shall mean Staff Builders, Inc., a Delaware corporation.
(f) "COMPENSATION" shall mean regular base salary, plus overtime payments
and bonuses.
(g) "EMPLOYEE" shall mean any individual who is a full-time or part-time
employee of the Company or any Subsidiary for purposes of tax withholding under
the Code and who was employed by the Company or a Subsidiary for 500 or more
hours during the twelve (12) month period immediately preceding the employee's
initial Enrollment Date. Notwithstanding anything contained herein to the
contrary, no employee shall be excluded from participating in the Plan if he or
she is eligible to participate in the Plan in accordance with
the provisions of Section 423(b)(4) of the Code. For purposes of the Plan,
the employment relationship shall be treated as continuing intact while the
individual is on sick leave or other leave of absence approved by the Company.
(h) "ENROLLMENT DATE" shall mean the first day of each Offering Period.
(i) "EXERCISE DATE" shall mean the last day of each Offering Period.
(j) "FAIR MARKET VALUE,'' shall mean, as of any date, the closing price
for Common Stock as reported on the NASDAQ National Market System (or, if no
sales were reported on such date, the closing price on the last day on which the
Common Stock was traded).
(k) "OFFERING PERIOD" shall mean the period of approximately three
(3) months during which an option granted pursuant to the plan may be exercise,
commencing on the first Trading Day on or immediately
<PAGE>
following the January 1, April 1, July 1, and October 1, of each year and
terminating on the last Trading Day in the period ending approximately three
(3) months later, except that the first Offering Period under the Plan shall
commence on or about October 1, 1993, or such other date as the Committee shall
determine, and end on the last Trading Day in the period ending three (3)
months later. The Committee shall have the power to change the duration of
Offering Periods (including the commencement dates thereof) with respect to
future offerings without stockholder approval if such change is announced
at least fifteen (15) days prior to the scheduled beginning of the
first Offering Period to be affected thereafter.
(l) "PLAN" shall mean this 1993 Employee Stock Purchase Plan.
(m) "PURCHASE PRICE" shall mean an amount equal to 90% of the Fair Market
Value of a share of Common Stock on the Enrollment Date or on the Exercise Date,
whichever is lower.
(n) "RESERVES" shall mean the number of shares of Common Stock covered by
each option under the plan which have not yet been exercised and the number of
shares of Common Stock which have been authorized for issuance under the Plan
but not yet placed under option.
(o) "SUBSIDIARY" shall mean a corporation, domestic or foreign, of which
not less than 50% of the voting shares are held by the Company or a Subsidiary,
whether or not such corporation now exists or is hereafter organized or
acquired by the Company or a Subsidiary.
(p) "TRADING DAY" shall mean a day on which the NASDAQ National Market
Systems is open for trading.
3. ELIGIBILITY.
(a) Any Employee who shall be employed by the Company on a given Enrollment
Date shall be eligible to anticipate in the Plan.
(b) Any provisions of the plan to the contrary notwithstanding, no Employee
shall be granted an option under the Plan (i) if, immediately after the
grant, such Employee (or any other person whose stock would be attributed to
such Employee pursuant to Section 424(d) of the code) would own capital stock of
the Company and/or hold outstanding options to purchase such stock possessing
five percent (5%) or more of the total combined voting power or value of all
classes of the capital stock of the Company or any Subsidiary, or (ii) if
such option would permit his or her rights to purchase stock under all employee
stock purchase plans of the Company and its Subsidiaries to accrue at a rate
which exceeds twenty-five thousand dollars ($25,000) worth of stock
(determined at the fair market value of the shares at the time such option
is granted) for each calendar year in which such option is outstanding at any
time.
4. PARTICIPATION.
(a) An eligible Employee may become a participant in the Plan by completing
a subscription agreement authorizing payroll deductions of the form provided
by the Company and filing it with the Company's payroll office at least ten
(10) business days prior to the applicable Enrollment Date or such other
period as the Committee shall determine.
(b) Payroll deductions for a participant shall commence on the first
payroll following the Enrollment date and shall end on the last payroll in the
Offering Period to which such authorization is applicable, unless sooner
terminated by the participant as provided in Section 9 hereof.
<PAGE>
5. PAYROLL DEDUCTIONS.
(a) At the time a participant files his or her subscription agreement,
he or she shall elect to have payroll deductions made on each pay day during
the Offering Period in whole percentages in an amount not less than one
percent (1%) and not exceeding ten percent (10%) of the Compensation which he
or she receives on each pay day during the Offering Period, and the aggregate
of such payroll deductions during the Offering Period shall not exceed ten
percent (10%) of the participant's Compensation during said Offering Period.
(b) All payroll deductions made for a participant under the Plan shall
be credited to his or her account. A participant may not make any additional
payments into such account.
(c) A participant may discontinue his or her participation in the Plan as
provided in Section 9 hereof, or may increase or decrease the rate of his or
her payroll deductions during the Offering Period by completing or filing
with the Company a new subscription agreement authorizing a change in payroll
deduction rate. The Committee may, in its discretion, limit the number of
participation rate changes during any Offering Period. The change in rate
shall be effective with the first full payroll period following ten (10)
business days after the Company's receipt of the new subscription agreement
unless otherwise determined by the Committee in its sole discretion. A
participant's subscription agreement shall remain in effect for successive
Offering Periods unless terminated as provided in Section 9 hereof.
(d) Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and Section 3(b) hereof, a participant's
payroll deductions may be decreased to 0% at such time during any Offering
Period which is scheduled to end during the current calendar year (the
"Current Offering Period") that the aggregate of all payroll deductions
which were previously used to purchase stock under the Plan in prior Offering
Periods which ended during that calendar year plus all payroll deductions
accumulated with respect to the Current Offering Period equal $22,500.
Payroll deductions shall commence at the rate provided in such participant's
subscription agreement at the beginning of the first Offering Period which is
scheduled to end in the following calendar year, unless terminated by the
participant as provided in Section 9 hereof.
(e) The Company may provide for, to the extent applicable, the
withholding of any federal, state or local taxes with respect to the options
granted to participants hereunder.
6. GRANT OF OPTION. On the Enrollment Date of each Offering Period, each
eligible Employee participating in such Offering Period shall be granted an
option to purchase on the Exercise Date during such Offering Period (at the
applicable Purchase Price) up to a number of shares of the Company's Common
Stock determined by dividing such Employee's payroll deductions accumulated
prior to such Exercise Date and retained in the participant's account as of
the Exercise Date by the applicable Purchase Price; provided that in no event
shall an Employee be permitted to purchase during each offering Period more
than a number of shares determined by dividing $6,250 by the Fair Market
Value of a share of the Company's Common Stock on the Enrollment Date, and
provided further than such purchase shall be subject to the limitations set
forth in Sections 3(b) and 11 hereof. Exercise of the option shall occur as
provided in Section 7 hereof, unless the participant has withdrawn pursuant
to Section 9 hereof, and the option shall expire on the last day of the
Offering Period.
7. EXERCISE OF OPTION. Unless a participant withdraws from the Plan as
provided in Section 9 hereof, his or her option for the purchase of shares will
be exercised automatically on the Exercise Date, and the maximum number of full
shares subject to options shall be purchased for such participant at the
applicable Purchase Price with the accumulated payroll deductions in his or her
account. No fractional shares will be purchased; any payroll deductions
accumulated in a participant's account which are not sufficient to purchase
<PAGE>
a full share shall be retained in the participant's account for the
subsequent Offering Period, subject to earlier withdrawal by the participant
as provided in Section 9 hereof. During a participant's lifetime, a
participant's option to purchase shares hereunder is nontransferable and
exercisable only by him or her.
8. DELIVERY. As promptly as practicable after each Exercise Date on
which a purchase of shares occurs, the Company shall arrange for the delivery
by mail to each participant at his or her last known address on the books of
the Company, as appropriate, of a certificate representing the shares
purchased upon exercise of his or her option.
9. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
(a) A participant may withdraw all but not less than all the payroll
deductions credit to his or her account and not yet used to exercise his or
her option under the Plan at any time by giving written notice to the Company
on the form provided by the Company. All of the participant's payroll
deductions credited to his or her account will be paid to such participant as
soon as administratively practicable after receipt of a notice of withdrawal
and such participant's option for the Offering Period will be automatically
terminated, and no further payroll deductions for the purchase of shares will
be made during the Offering Period. If a participant withdraws during an
Offering Period, payroll deductions will not resume at the beginning of the
succeeding Offering Period unless the participant delivers to the Company a
new subscription agreement.
(b) Upon a participant's ceasing to be an Employee for any reason, he or
she will be deemed to have elected to receive the whole number of shares than
can be purchased at the applicable Purchase Price with the payroll deductions
credited to such participant's account during the Offering Period but not
yet used to exercise the option together with any remaining cash in such
participant's account. In the case of his or her death, such shares and/or
cash shall be given to the person or persons entitled thereto under Section
13 hereof.
10. INTEREST. No interest shall accrue on the payroll deductions of a
participant in the Plan.
11. STOCK.
(a) The maximum number of shares of the Company's Common Stock which
shall be made available for sale under the Plan shall be one million
(1,000,000) shares, subject to adjustment upon changes in capitalization of
the Company as provided in Section 17 hereof. If on a given Exercise Date the
number of shares with respect to which options are to be exercised exceeds
the number of shares then available under the Plan, the Company shall make a
pro rata allocation of the shares remaining available for purchase in as
uniform a manner as shall be practicable and as it shall determine to be
equitable.
(b) The participant will have no interest or voting right in shares
covered by his option until such option has been exercised.
12. ADMINISTRATION.
(1) PLAN ADMINISTRATOR. The Plan shall be administered by the
Committee. The committee shall have full and exclusive discretionary
authority to construe, interpret and apply the terms of the Plan, to
determine eligibility under the Plan, to adjudicate all disputed claims filed
under the Plan and to make all other determinations necessary or advisable
for the administration of the Plan. Every finding, decision and determination
made by the Committee shall, to the full extent permitted by law, be final
and binding upon all parties.
<PAGE>
(b) RULE 16b-3 LIMITATIONS. Notwithstanding the provisions of
Subsection (a) of this Section 12, in the event that Rule 16b-3
("Rule 16b-3") promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") provides specific requirements for the
administrators of plans of this type, the Plan shall be administered only by
such persons or committee and in such a manner as shall comply with the
applicable requirements of Rule 16b-3. Unless permitted by Rule 16b-3, no
discretion concerning decisions regarding the Plan shall be afforded to any
committee or person that is not "disinterested" as that term is used
in Rule 16b-3.
13. DESIGNATION OF BENEFICIARY.
(a) A participant may file a written designation of a beneficiary who
is to receive any shares and cash, if any, from the participant's account
under the Plan in the event of such participant's death subsequent to an
Exercise Date on which the option is exercised but prior to delivery to such
participant of such shares and cash. In addition, a participant may file a
written designation of a beneficiary who is to receive any cash from the
participant's account under the Plan in the event of such participant's death
prior to exercise of the option.
(b) Such designation of beneficiary may be changed by the participant
at any time by written notice. In the event of the death of a participant and
in the absence of a beneficiary validly designated under the Plan who is
living at the time of such participant's death, the company shall deliver
such shares and/or cash to the executor or administrator of the estate of the
participant, or if no such executor or administrator has been appointed (to
the knowledge of the Company), the Company, in its discretion, may deliver
such shares and/or cash to the spouse or to any one or more dependents or
relatives of the participant, or if no spouse, dependent or relative is known
to the Company, then to such other person as the Company may designate.
14. TRANSFERABILITY. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option
or to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 13 hereof) by the participant. Any
such attempt at assignment, transfer, pledge or other disposition shall be
without effect, except that the Company may treat such act as an election to
withdraw from the Plan in accordance with Section 9 hereof.
15. USE OF FUNDS. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose,
and the Company shall not be obligated to segregate such payroll deductions.
16. REPORTS. Individual accounts will be maintained for each
participant in the Plan. Statements of account will be given to participating
Employees at least annually, which statements will set forth the amount of
payroll deductions during the period covered by the statement, the Purchase
Price of shares of Common Stock purchased during the period covered by the
statement, the number of shares purchased during the period covered by the
statement and the remaining cash balance, if any.
17. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION,
LIQUIDATION, MERGER OR ASSET SALE.
(a) CHANGES IN CAPITALIZATION. Subject to any required action by the
stockholders of the Company, the Reserves as well as the price per share of
Common Stock covered by each option under the Plan which has not yet been
exercised shall be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock, or any other increase or decrease in the number of shares of
Common Stock effected without receipt of consideration by the Company. Such
adjustment shall be made by the Committee, whose determination in that
respect shall be final, binding and conclusive. Except as expressly
<PAGE>
provided herein, no issuance by the Company of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect,
and no adjustment by reason thereof shall be made with respect to, the number
or price of shares of Common Stock subject to an option.
(b) DISSOLUTION OR LIQUIDATION, ETC. In the event of the proposed
dissolution, liquidation or discontinuance of business operations of the
Company, the Offering Period then in progress will terminate immediately
prior to the consummation of such proposed action, unless otherwise provided
by the Board or the Committee.
(c) MERGER OR ASSET SALE. In the event of a proposed sale of all or
substantially all of the assets of the Company, or the merger or
consolidation of the Company with or into another corporation, each option
under the Plan shall be assumed or an equivalent option shall be substituted
by such successor corporation or a parent or subsidiary of such successor
corporation, unless the Board or the Committee determines, in the exercise of
its sole discretion and in lieu of such assumption or substitution, to
shorten the Offering Period then in progress by setting a new Exercise Date
(the "New Exercise Date"). If the Board or the Committee shortens the
Offering Period then in progress in lieu of assumption or substitution in the
event of a merger, consolidation or sale of assets, the Committee shall
notify each participant in writing, at least ten (10) business days prior to
the New Exercise Date, unless otherwise provided by the Committee, that the
Exercise Date for his option has been changed to the New Exercise Date and
that his option will be exercised automatically on the New Exercise Date,
unless prior to such date he has withdrawn from the Offering Period as
provided in Section 9 hereof. For purposes of this paragraph, an option
granted under the Plan shall be deemed to be assumed if, following the sale
of assets, merger or consolidation, the option confers the right to purchase,
for each share of option stock subject to the option immediately prior to the
sale of assets, merger or consolidation, the consideration (whether stock,
cash or other securities or property) received in the sale of assets, merger
or consolidation by holders of Common Stock for each share of Common Stock
held on the effective date of the transaction (and if such holders were
offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding shares of Common Stock); provided,
however, that if such consideration received in the sale of assets, merger or
consolidation was not solely common stock of the successor corporation or its
parent (as defined in Section 424(e) of the Code), the Committee may, with
the consent of the successor corporation and the participant, provide for the
consideration to be received upon exercise of the option to be solely common
stock of the successor corporation or its parent equal in fair market value
to the per share consideration received by holders of Common Stock in the
sale of assets, merger or consolidation.
18. AMENDMENT OR TERMINATION.
(a) The Board or the Committee may at any time and of any reason amend
the Plan. The Board may at any time and for any reason terminate the Plan.
Except as provided in Section 17 hereof, no such termination can affect
options previously granted, provided that an Offering Period may be
terminated by the Board on any Exercise Date if the board determines that the
termination of the Plan is in the best interests of the Company and its
stockholders. Except as provided in Section 17 hereof, no amendment may make
any change in any option theretofore granted which adversely affects the
rights of any participant. To the extent necessary to comply with Rule 16b-3
or under Section 423 of the Code (or any successor rule or provision or any
other applicable law or regulation), the Company shall obtain stockholder
approval in such a manner and to such a degree as required.
(b) Without stockholder consent and without regard to whether any
participant rights may be considered to have been "adversely affected," the
board or the Committee shall be entitled to change the
<PAGE>
Offering Periods, limit the frequency and/or number of changes in the amount
withheld during an Offering Period, establish the exchange ratio applicable
to amounts withheld in a currency other than U.S. dollars, permit payroll
withholding in excess of the amount designated by a participant in order to
adjust for delays or mistakes in the Company's processing of properly
completed withholding elections, establish reasonable waiting and adjustment
periods and/or accounting and crediting procedures to ensure that amounts
applied toward the purchase of Common Stock for each participant properly
correspond with amounts withheld from the participant's Compensation, and
establish such other limitations or procedures as the Board or the Committee
determines in its sole discretion advisable which are consistent with the
Plan.
19. NOTICES. All notices or other communications by a participant to
the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Company at the
location, or by the person, designated by the Company for the receipt thereof.
20. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance and
delivery of such shares pursuant thereto shall comply with all provisions of
applicable law.
As a condition to the exercise of an option, the Company may require
the person exercising such option to represent and warrant at the time of any
such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares.
21. INDEMNIFICATION OF COMMITTEE. In addition to such other rights of
indemnification as they may have as member of the Board or as members of the
Committee, the Company shall indemnify the members of the Committee against
all costs and expenses reasonably incurred by them in connection with any
action, suit or proceeding to which they or any of them may be party by
reason of any action taken or failure to act under or in connection with the
Plan, and against all amounts paid by them in satisfaction of a judgment in
any such action, suit or proceeding, except a judgment based upon a finding
of bad faith. Upon the institution of any such action, suit or proceeding, a
Committee member shall notify the Company in writing, giving the Company an
opportunity as its own expense, to handle and defend the same before such
Committee member undertakes to handle it on his own behalf.
22. TERM OF PLAN. The Plan shall become effective upon the earlier to
occur of its adoption by the Board or its approval by the stockholders of the
Company. It shall continue in effect for a term of ten (10) years unless
sooner terminated under Section 18 hereof.
23. ADDITIONAL RESTRICTIONS OF RULE 16b-3. The terms and conditions of
options granted hereunder to, and the purchase of shares by, persons subject
to Section 16 of the Exchange Act shall comply with the applicable provisions
of Rule 16b-3. This Plan shall be deemed to contain, and such options shall
contain, and the shares issued upon exercise thereof shall be subject to,
such additional conditions and restrictions as may be required by Rule 16b-3
to qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
24. RIGHT OF DISCHARGE RESERVED. Nothing in the Plan shall confer upon
a participant or any other person the right to continue in the employment of
the company or any Subsidiary or affect any right which the Company or such
Subsidiary may have to terminate the employment of the participant or any
other person.
25. GOVERNING LAW. All questions pertaining to the construction,
validity and effect of the Plan, or to the rights of any person under the
Plan, shall be determined in accordance with the laws of the State of New
York.
<PAGE>
Exhibit 4.10
STAFF BUILDERS, INC.
1993 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
__________ Original Application Enrollment Date: _____________________
__________ Change in Payroll Deduction Rate
__________ Change of Beneficiary(ies)
1. _________________________________________________ hereby elects to
participate in the Staff Builders, Inc. 1993 Employee Stock Purchase Plan
(the "1993 Employee Stock Purchase Plan") and subscribes to purchase shares
of the Company's Common Stock in accordance with this Subscription
Agreement and the 1993 Employee Stock Purchase Plan.
2. I hereby authorize payroll deductions from each paycheck in an amount equal
to ______% (not to exceed 10%) of my Compensation on each payday during the
Offering Period in accordance with the 1993 Employee Stock Purchase Plan.
(Please note that no fractional percentages are permitted.)
3. I understand that said payroll deductions shall be accumulated for the
purchase of shares of Common Stock at the applicable Purchase Price
determined in accordance with the 1993 Employee Stock Purchase Plan. I
understand that if I do not withdraw from an Offering Period, any
accumulated payroll deductions will be used to automatically exercise my
option to purchase shares of Common Stock.
4. I acknowledge that I have received a complete copy of the 1993 Employee
Stock Purchase Plan. I understand that my participation in the 1993
Employee Stock Purchase Plan is in all respects subject to its terms.
5. Shares purchased for me under the 1993 Employee Stock Purchase Plan should
be issued in the name(s) of (Employee or Employee and spouse only):
_______________________ ____________________________________.
6. I hereby agree to notify the Company in writing within 30 days after the
date of any disposition of my shares and that adequate provision will be
made for federal, state or other tax withholding obligations, if any, which
arise upon the disposition of shares of Common Stock.
<PAGE>
7. I hereby agree to be bound by the terms of the 1993 Employee Stock Purchase
Plan. The effectiveness of this Subscription Agreement is dependent upon
my eligibility to participate in the 1993 Employee Stock Purchase Plan.
8. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and shares due me under the 1993
Employee Stock Purchase Plan:
NAME: (Please print):_____________________________________________________
(First) (Middle) (Last)
___________________________ __________________________________________
Relationship
__________________________________________
(Address)
NAME: (Please print):_____________________________________________________
(First) (Middle) (Last)
___________________________ __________________________________________
Relationship
__________________________________________
(Address)
9. Capitalized terms used herein but not otherwise defined in this
Subscription Agreement shall have the respective meanings ascribed to them
in the 1993 Employee Stock Purchase Plan.
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT
SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Dated:______________________ _______________________________________________
Signature of Employee
_______________________________________________
Spouse's Signature (if beneficiary is other than
spouse)
<PAGE>
Employee's Social
Security Number: _______________________________________________
Employee's Address: _______________________________________________
_______________________________________________
_______________________________________________
<PAGE>
STAFF BUILDERS, INC.
1993 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
The undersigned participant of the Staff Builders, Inc. 1993 Employee
Stock Purchase Plan hereby notifies the Company that he or she hereby withdraws
from the current Offering Period which began on ____________________, _____.
The undersigned directs the Company to pay to the undersigned as promptly as
practicable all the payroll deductions credited to his or her account with
respect to such Offering Period. The undersigned understands and agrees that
his or her option to purchase shares during such Offering Period will be
automatically terminated. The undersigned understands further that no
additional payroll deductions will be made for the purchase of shares in the
current Offering Period and the undersigned shall be eligible to participate in
succeeding Offering Periods by delivering to the Company a new Subscription
Agreement.
Name and Address of Participant:
_______________________________________________
_______________________________________________
_______________________________________________
Signature:
_______________________________________________
Date:___________________________________________
<PAGE>
EXHIBIT 5
[RICHARDS & O'NEIL, LLP LETTERHEAD]
(212) 207-1200
October 26, 1995
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Staff Builders, Inc.
--------------------
Dear Sir or Madam:
We have acted as special counsel to Staff Builders, Inc., a Delaware
corporation (the "Company"), in connection with the proposed issuance of up to
an aggregate of 1,000,000 shares (the "Shares") of the Company's Class A
common stock, par value $.01 per share ("Class A Common Stock"), pursuant to
the Company's 1993 Employee Stock Purchase Plan, as amended (the "Plan").
As such counsel, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purpose of rendering
this opinion. In our examinations, we have assumed the genuineness of all
documents submitted to us as originals and the conformity to originals and
certified documents of all copies submitted to us as conformed copies.
In rendering the opinion below, we have assumed that (a) upon exercise
of the options granted under the Plan (the "Options"), the Company will have a
sufficient number of authorized shares of Class A Common Stock not reserved for
other purposes to permit the issuance of the Shares; and (b) prior to the dates
of exercise of the Options, no change occurs in the applicable law or the
pertinent facts.
<PAGE>
Securities and Exchange Commission
October 26, 1995
Page 2
We do not purport to be experts in, or to express any opinion herein
concerning, the law of any jurisdiction other than the State of New York, the
United States of America and the State of Delaware (but only insofar as set
forth in the General Corporation Law of the State of Delaware).
Based on the foregoing, we are of the opinion that the Shares have
been duly authorized and reserved for issuance by the Company upon exercise of
the Options and, when issued and sold against payment therefor in accordance
with the terms of the Plan and the subscription agreements executed thereunder,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8 being filed herewith by the Company with the
Securities and Exchange Commission. In giving such consent, we do not thereby
admit that we are within the category of persons whose consent is required by
Section 7 of the Securities Act of 1933, as amended, and the Rules and
Regulations promulgated thereunder.
Very truly yours,
/s/ Richards & O'Neil, LLP
--------------------------
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
Staff Builders, Inc. on Form S-8 of our report dated April 13, 1995, appearing
in the Annual Report on Form 10-K/A of Staff Builders, Inc.for the year ended
February 28, 1995.
Deloitte & Touche LLP
Jericho, New York
October 25, 1995
