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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4 )*
STAFF BUILDERS, INC.
(formerly TENDER LOVING CARE HEALTH CARE SERVICES, INC.)
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(Name of Issuer)
COMMON STOCK, $.01 par value per share
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(Title of Class of Securities)
852377100
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(CUSIP Number)
Mr. Gary Tighe Floyd I. Wittlin, Esq.
Staff Builders, Inc. Richards & O'Neil, LLP
1983 Marcus Avenue 885 Third Avenue
Lake Success, NY 11042 New York, NY 10022
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
--------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box / /.
Check the following box if a fee is being paid with this statement / /. (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class
of securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(Continued on following page(s))
Page 1 of 12 Pages
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CUSIP No. 852377100 13D Page 2 of 12 Pages
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(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Stephen Savitsky - SS#: ###-##-####
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(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
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(3) SEC Use Only
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(4) Source of Funds*
Not Applicable
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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(6) Citizenship or Place of Organization
United States
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Number of Shares (7) Sole Voting
Beneficially Owned Power 1,646,601
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 671,552
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(9) Sole Dispositive
Power 1,646,601
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(10) Shared Dispositive
Power 0
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,318,153
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
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(13) Percent of Class Represented by Amount in Row (11)
9.4%
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(14) Type of Reporting Person*
IN
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*SEE INSTRUCTION BEFORE FILLING OUT!
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STAFF BUILDERS, INC. SCHEDULE 13D
AMENDMENT NO. 4
NOTE: This Amendment No. 4 amends a Statement on Schedule 13D, dated
November 1, 1986 (the "Initial Statement"), and filed on behalf of Stephen
Savitsky, as amended by Amendment No. 1, dated December 27, 1989 ("Amendment No.
1"), Amendment No. 2, dated December 3, 1991 ("Amendment No. 2"), and Amendment
No. 3, dated February 23, 1994 ("Amendment No. 3" and, together with Amendment
No. 1, Amendment No. 2 and the Initial Statement, the "Schedule 13D").
ITEM 1. SECURITY AND ISSUER.
This statement relates to the common stock, par value $.01 per share
("Common Stock"), of Staff Builders, Inc., a Delaware corporation (the
"Company"). Prior to December 1, 1987, the name of the Company was "Tender
Loving Care Health Care Services, Inc." The Company's principal executive
officers are located at 1983 Marcus Avenue, Lake Success, New York 11042.
ITEM 2. IDENTITY AND BACKGROUND.
(a) Stephen Savitsky.
(b) Mr. Savitsky's business address is 1983 Marcus Avenue, Lake
Success, New York 11042.
(c) Mr. Savitsky is Chairman of the Board, President, Chief Executive
Officer and a Director of the Company.
(d) Mr. Savitsky has not been convicted in a criminal proceeding
(excluding traffic violations and similar misdemeanors) during the last five
years.
(e) Mr. Savitsky has not been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction during the last five
years that resulted in Mr. Savitsky being subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
(f) Mr. Savitsky is a citizen of the United States.
Page 3 of 12
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ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
This Amendment No. 4 to Schedule 13D relates to the vesting on
February 7, 1995 of non-qualified stock options to purchase 250,000 shares of
Common Stock out of a total of 1,000,000 non-qualified stock options granted to
Mr. Savitsky on October 1, 1994 pursuant to the Company's 1994 Performance-Based
Stock Option Plan (the "'94 Plan").
Mr. Savitsky paid no consideration for the options.
ITEM 4. PURPOSE OF TRANSACTION.
Stock options were granted under the '94 Plan to provide incentive to
those executive officers of the Company, selected by the Compensation and Stock
Option Committee of the Company's Board of Directors, to continue and increase
their efforts to improve operating results, to remain in the employ of the
Company and to have a greater financial interest in the Company through
ownership of its Common Stock. As a result of the vesting of these options, Mr.
Savitsky will be able to further increase his ownership stake in the Company
upon exercise of the options and thus enhance his ability to influence its
affairs. Except for the possible exercise of these and other options, Mr.
Savitsky does not have any plans or proposals which relate to or would result in
any of the actions specified in Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) (b) Mr. Savitsky beneficially owns 2,318,153 shares of Common
Stock (representing 9.4% of the outstanding Common Stock), has sole power with
respect to the voting and disposition of 1,646,601 of such shares (1,303,863 of
which Mr. Savitsky has the option to acquire and will not have the right to vote
such shares until such option is exercised) and has shared power with respect to
the voting of 671,552 of such shares pursuant to the grant to Mr. Savitsky of a
ten year revocable proxy by Ephraim Koschitzki (526,600 of which the grantor of
such proxy has the option to acquire and Mr. Savitsky will not have such shared
power with respect to the voting of such shares until such option is exercised).
(Although Mr. Savitsky is not furnished with verifiable information with respect
to the number of shares beneficially owned by Mr. Koschitzki, Mr. Savitsky
believes Mr. Koschitzki beneficially owns 671,552 shares.) Mr. Savitsky shares
power with respect to the voting of such 671,552 shares of Common Stock with
David Savitsky, Executive Vice President, Chief Operating Officer, Secretary,
Treasurer and a
Page 4 of 12
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Director of the Company, whose business address is 1983 Marcus Avenue, Lake
Success, New York 11042. Mr. Savitsky is a citizen of the United States.
In addition to the shares of Common Stock underlying Mr. Savitsky's
vested options under the '94 Plan, Mr. Savitsky has the option to acquire
519,863 shares of Common Stock that he beneficially owns pursuant to the terms
of vested options granted to Mr. Savitsky under the Company's 1983 Incentive
Stock Option Plan (the "'83 Plan"). Mr. Savitsky was granted 351,000 of these
vested options on March 28, 1990, an additional 13,000 of these vested options
on June 17, 1991, an additional 150,000 of these vested options on May 26, 1992,
and the remaining 5,863 vested options on April 22, 1993.
Mr. Savitsky also has the option to acquire 334,000 of the shares of
Common Stock that he beneficially owns pursuant to the terms of vested options
granted to Mr. Savitsky under the Company's 1986 Non-Qualified Stock Option Plan
(the "'86 Plan"). Mr. Savitsky was granted 234,000 of these vested options on
March 28, 1990, and the remaining 100,000 vested options on June 17, 1991.
Mr. Savitsky also has the option to acquire 200,000 of the shares of
Common Stock that he beneficially owns pursuant to the terms of vested options
granted to Mr. Savitsky on February 3, 1994 under the Company's 1993 Stock
Option Plan (the "'93 Plan").
Stock options are granted under the '83 Plan, the '86 Plan and the '93
Plan to officers, directors and employees of the Company selected by the
Compensation and Stock Option Committee of the Company's Board of Directors as a
reward for the grantees' past efforts, and to encourage their future efforts, on
behalf of the Company.
Pursuant to the Company's Certificate of Incorporation, a holder of
shares of Common Stock who beneficially owned such shares for at least 48
consecutive calendar months prior to the record date of a meeting of
stockholders is entitled, with certain limited exceptions, to ten votes for each
such share. A holder of shares of Common Stock which have not been held for at
least such time period is entitled to one vote for each such share. Shares of
Common Stock acquired after May 15, 1986 pursuant to options granted before May
15, 1986 are entitled, with certain limited exceptions, to ten votes for each
such share. Shares entitled to one vote per share are referred to as "Short-Term
Shares" and shares entitled to ten votes per share are referred to as "Long-Term
Shares." 487,690 of the 2,318,153 shares of Common Stock of which Mr. Savitsky
is the beneficial
Page 5 of 12
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owner are Long-Term Shares (Mr. Savitsky shares voting power with respect to
144,952 of such 487,690 Long-Term Shares pursuant to a ten year revocable proxy)
and the remainder are Short-Term Shares. Because a portion of the shares
beneficially owned by Mr. Savitsky are Long-Term Shares, the percentage of votes
that he may cast at a meeting of stockholders is greater than the percentage of
the outstanding Common Stock owned by him.
(c) Except for the vesting of 250,000 options under the '94 Plan on
February 6, 1995, Mr. Savitsky has not engaged in any transaction with regard to
the Common Stock during the past sixty days.
(d) Mr. Ephraim Koschitzki has the right to receive and direct the
receipt of dividends from, or the proceeds from the sale of, 671,552 shares of
Common Stock beneficially owned by Mr. Savitsky (526,600 of which Mr. Koschitzki
has the option to acquire and will not have such rights with respect to such
shares until such option is exercised).
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
The contracts, arrangements, understandings and relationships required
to be described in response to Item 6 to Schedule 13D are described in the
response to Items 4 and 5 of this Amendment No. 4 to Schedule 13D.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 - The Company's 1983 Incentive Stock Option Plan, as
amended (incorporated by reference to Exhibit 28.1 to
the Company's Registration Statement on Form S-8 with
respect to the Company's 1983 Incentive Stock Option
Plan filed with the Securities and Exchange Commission
on December 1, 1988 and Exhibits 10.2, 10.3, 10.4,
10.5, 10.6 and 10.7 to the Company's Registration
Statement on Form S-8 with respect to the Company's
1983 Incentive Stock Option Plan filed with the
Securities and Exchange Commission on May 22, 1992).
Page 6 of 12
<PAGE>
Exhibit 2 [Option agreement, dated March 28, 1990, under the
Company's 1983 Incentive Stock Option Plan between the
Company and Stephen Savitsky].
Exhibit 3 - Amendment to the Stock Option Agreement, dated November
1, 1991, amending the Option Agreement dated March 28,
1990, under the Company's 1983 Incentive Stock Option
Plan between the Company and Stephen Savtisky.
Exhibit 4 - Option Agreement, dated June 17, 1991, under the
Company's 1983 Incentive Stock Option Plan between the
Company and Stephen Savitsky (previously filed as
Exhibit 4 to Amendment No. 2 to this Schedule 13D).
Exhibit 5 - Option Agreement, dated May 26, 1992, under the
Company's 1983 Incentive Stock Option Plan between the
Company and Stephen Savitsky (previously filed as
Exhibit 2 to Amendment No. 3 to this Schedule 13D).
Exhibit 6 - Option Agreement, dated April 22, 1993, under the
Company's 1983 Incentive Stock Option Plan between the
Company and Stephen Savitsky (previously filed as
Exhibit 3 to Amendment No. 3 to this Schedule 13D).
Exhibit 7 - The Company's 1986 Non-Qualified Stock Option Plan, as
amended (incorporated by reference to Exhibit 28.1 to
the Company's Registration Statement on Form S-8 with
respect to the Company's 1986 Non-Qualified Stock
Option Plan filed with the Securities and Exchange
Commission on December 1, 1988 and Exhibits 10.2 and
10.3 to the Company's Registration Statement on Form S-
8 with respect to the Company's 1986 Non-Qualified
Stock Option Plan filed with the Securities and
Exchange Commission on May 22, 1992).
Exhibit 8 - [Option Agreement, dated as of March 28, 1990, under
the Company's 1986 Non-
Page 7 of 12
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Qualified Stock Option Plan between the Company and
Stephen Savitsky].
Exhibit 9 - Stock Option Agreement, dated as of June 17, 1991,
under the Company's 1986 Non-Qualified Stock Option
Plan between the Company and Stephen Savitsky
(previously filed as Exhibit 2 to Amendment No. 2 to
this Schedule 13D).
Exhibit 10 - The Company's 1993 Stock Option Plan, as amended
(incorporated by reference to Exhibit 4.5 to the
Company's Registration Statement on Form S-8 with
respect to the Company's 1993 Stock Option Plan filed
with the Securities and Exchange Commission on
September 7, 1993).
Exhibit 11 - Agreement, dated February 3, 1994, under the Company's
1993 Stock Option Plan between the Company and Stephen
Savitsky (previously filed as Exhibit 5 to Amendment
No. 3 to this Schedule 13D).
Exhibit 12 - The Company's 1994 Performance-Based Stock Option Plan.
Exhibit 13 - Agreement, dated as of October 1, 1994, under the
Company's 1994 Performance-Based Stock Option Plan
between the Company and Stephen Savitsky.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Page 8 of 12
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment No. 4 is true, complete
and correct.
Dated: February 21, 1995
/s/ Stephen Savitsky
----------------------------
Stephen Savitsky
Page 9 of 12
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EXHIBIT INDEX
Location of
in Sequential
Exhibit No. Description Numbering System
- ----------- ----------- ----------------
1 The Company's 1983 Incentive Stock
Option Plan, as amended
(incorporated by reference to
Exhibit 28.1 to the Company's
Registration Statement on Form S-8
with respect to the Company's 1983
Incentive Stock Option Plan filed
with the Securities and Exchange
Commission on December 1, 1988 and
Exhibits 10.2, 10.3, 10.4, 10.5,
10.6 and 10.7 to the Company's
Registration Statement on Form S-8
with respect to the Company's 1983
Incentive Stock Option Plan filed
with the Securities and Exchange
Commission on May 22, 1992).
2 [Option Agreement, dated March 28,
1990, under the Company's 1983
Incentive Stock Option Plan between
the Company and Stephen Savitsky].
3 Amendment to Stock Option
Agreement, dated November 1, 1991
amending the Option Agreement dated
March 28, 1990, under the Company's
1983 Incentive Stock Option Plan
between the Company and Stephen
Savitsky.
4 Option Agreement, dated June 17,
1991, under the Company's 1983
Incentive Stock Option Plan between
the Company and Stephen Savitsky
(previously filed as Exhibit 4
Page 10 of 12
<PAGE>
to Amendment No. 2 to this
Schedule 13D).
5 Option Agreement, dated May 26,
1992, under the Company's 1983
Incentive Stock Option Plan between
the Company and Stephen Savitsky
(previously filed as Exhibit 2 to
Amendment No. 3 to this
Schedule 13D).
6 Option Agreement, dated April 22,
1993, under the Company's 1983
Incentive Stock Option Plan between
the Company and Stephen Savitsky
(previously filed as Exhibit 3 to
Amendment No. 3 to this
Schedule 13D).
7 The Company's 1986 Non-Qualified
Stock Option Plan, as amended
(incorporated by reference to
Exhibit 28.1 to the Company's
Registration Statement on Form S-8
with respect to the Company's 1986
Non-Qualified Stock Option Plan
filed with the Securities and
Exchange Commission on December 1,
1988 and Exhibits 10.2 and 10.3 to
the Company's Registration
Statement on Form S-8 with respect
to the Company's 1986 Non-Qualified
Stock Option Plan filed with the
Securities and Exchange Commission
on May 22, 1992).
8 [Option Agreement, dated as of
March 28, 1990, under the Company's
1986 Non-Qualified Stock Option
Plan between the Company and
Stephen Savitsky].
9 Stock Option Agreement, dated as of
June 17, 1991, under the Company's
1986 Non-Qualified Stock Option
Plan between the Company and
Stephen Savitsky (previously filed
as Exhibit 2 to Amendment No. 2 to
this Schedule 13D).
Page 11 of 12
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10 The Company's 1993 Stock Option
Plan, as amended (incorporated by
reference to Exhibit 4.5 to the
Company's Registration Statement on
Form S-8 with respect to the
Company's 1993 Stock Option Plan
filed with the Securities and
Exchange Commission on September 7,
1993).
11 Agreement, dated February 3, 1994,
under the Company's 1993 Stock
Option Plan between the Company and
Stephen Savitsky (previously filed
as Exhibit 5 to Amendment No. 3 to
this Schedule 13D).
12 The Company's 1994 Performance-
Based Stock Option Plan.
13 Agreement, dated as of October 1,
1994, under the Company's 1994
Performance-Based Stock Option Plan
between the Company and Stephen
Savitsky.
Page 12 of 12
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Exhibit 2
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Optionee: STEPHEN SAVITSKY
STAFF BUILDERS, INC. STOCK OPTION PLAN
OPTION AGREEMENT
OPTION AGREEMENT, dated March 28, 1990 between
STAFF BUILDERS, INC., a Delaware Corporation (the "Company") and Stephen
Savitsky,
The Company has adopted the 1983 Incentive Stock Option Plan (the
"Plan"), a copy of which is attached hereto, and desires to grant to the
Optionee the option provided for herein, all subject to the terms and conditions
of the Plan.
IT IS AGREED as follows:
1. Grant of Option. By the determination of the Board of
Directors, the Company hereby grants to the Optionee the right and option to
purchase an aggregate of 351,000 shares of its Common Stock as more specifically
set forth in Exhibit A hereto (as defined in the Plan) at the initial option
price of $1.93 per share (being the Fair Market Value of a Share of Common Stock
on the date hereof) as may be adjusted from time to time as provided in the
Plan.
<PAGE>
2. Option period. The option granted hereby shall expire on the
tenth anniversary date hereof, subject to earlier termination as provided in the
Plan.
3. Exercise of Option. The Optionee may exercise the options
hereby granted at any time after the Exercise Date thereof as set forth in
Schedule A PROVIDED HOWEVER that no option may be exercised prior to one year
after the date set forth above, and further provided that no option shall be
exercisable while there is outstanding (as defined in Section 422A of the
Internal Revenue Code of 1954) any incentive stock option which was granted to
the Optionee under the Plan prior to the granting of this option.
The option may be exercised by the Optionee delivering to the
Company at 1981 Marcus Avenue, Lake Success, New York 11042, a written notice
duly signed by the Optionee stating the number of shares that the Optionee has
elected to purchase and accompanied by payment (in cash or by certified check)
of an amount equal to the full purchase price for the shares to be purchased.
The notice must also contain a statement (in a form acceptable to the Company)
that the Optionee is acquiring such shares for investment and not with a view
toward their distribution or resale. Following receipt by the Company of such
notice and full payment, the Company shall issue, as soon as practicable, the
shares in the name of the Optionee and deliver the certificate therefore to the
Optionee. The Company, however, shall not be required to issue or deliver a
certificate for any
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shares until it has complied with all requirements of the Securities Act of
1933, the Securities Exchange Act of 1934, any securities exchange on which the
Company's stock may then be listed and all applicable state laws in connection
with the issuance of such shares or the listing of such shares on said
securities exchange. Until the issuance of the certificate for such shares, the
Optionee shall have none of the rights of a shareholder in respect of such
shares.
4. Employment. Nothing contained in this Option Agreement shall
confer upon the Optionee his/her right to be continued in the employ of the
Company or shall prevent the Company from terminating his/her employment at any
time, with or without cause. If the Optionee's employment with the Company is
terminated for any reason other than death, this option shall be exercisable
only as to those shares of Common Stock immediately purchasable by him at the
date of termination and only for a period of three (3) months after the
termination, or twelve (12) months in the case of permanent and total
disability.
5. Death. If the Optionee dies while employed by the Company or
within three (3) months after termination of his employment, that portion of
this option which was exercisable by the Optionee at the time of death shall be
exercisable by his legal representatives or beneficiaries at anytime within
twelve (12) months after the Optionee's death.
6. Non Transferability of Option. This option shall not be
transferable other than by will or by the laws of
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descent and distribution, and may be exercised during the Optionee's lifetime
only by him.
7. Tax Status. The Company has been advised by counsel that based
on existing laws and regulations, this option will quality as an "incentive
stock option" under the provisions of Section 422A of the Internal Revenue Code
of 1954. Under the provision of the Internal Revenue Code and applicable
regulations in effect at the time of the adoption of the plan by the Company, if
stock is purchased upon exercise of this option while the Optionee is employed
by the Company or within three (3) months after termination of such employment
(twelve (12) months after employment termination in the case of permanent and
total disability), and is held for at least one year after the date of the
delivery of the stock certificate for such shares, PROVIDED HOWEVER, such one-
year period is more than two years from the date of grant of this option, any
profit realized upon the sale of such stock will be treated as long-term capital
gain for Federal Income Tax purposes.
8. Incorporation of Plan. The option granted hereby is subject to,
and governed by, the terms and conditions of the Plan, which are hereby
incorporated by reference. This Agreement, including the Plan incorporated by
reference herein, is the entire agreement among the parties hereto with respect
to the subject matter hereof and supersedes all prior agreements and
understandings.
4
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9. Adjustments Upon Changes in Capitalization. If at any time
after the date of grant of this option, the Company shall, by stock dividend,
split-up, combination, reclassification or exchange, or through merger or
consolidation, or otherwise, change its shares of Common Stock into a different
number or kind of class or shares of the securities or property, then the number
of shares covered by this option and the price of each share shall be
proportionately adjusted for any such change by the Board of Directors whose
determination shall be conclusive. Any fraction of a share resulting from any
adjustment shall be eliminated and the price per share of the remaining shares
subject to this option adjusted accordingly.
10. Notices. Any notice to be given by the Optionee hereunder
shall be sent to the Company at its principal executive offices, and any notice
from the Company to the Optionee shall be sent to the Optionee at his address
set forth above; all such notices shall be in writing and shall be delivered in
person or by registered or certified mail. Either party may change the address
to which notices are to be sent by notice in writing given to the other in
accordance with the terms hereof.
11. Governing Law. The parties hereto hereby ac-knowledge and
agree that the option granted hereby is granted in the State of New York and any
shares of Common Stock issued upon exercise of the option will be issued in the
State of New York. This Agreement, as well as the grant of such option and
issuance of such shares, is and shall be governed by and construed in
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accordance with the laws of the State of New York applicable to the agreements
made and to be performed entirely within such State.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
STAFF BUILDERS, INC.
/s/ David Savitsky By: /s/ Gordon J. Gerard
- ------------------------- -----------------------
Secretary
/s/ Stephen Savitsky
-----------------------
Grantee
6
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STAFF BUILDERS INC. STOCK OPTION PLAN
OPTION AGREEMENT
OPTIONEE: STEPHEN SAVITSKY
EXHIBIT A
No. of Shares Exercise Date
- ------------- -------------
351,000 Immediately
<PAGE>
Exhibit 3
<PAGE>
Amendment to the
Stock Option Agreement
This Amendment Agreement, made as of the 1st day of November, 1991,
is between Staff Builders Inc., a Delaware corporation (the "Company") and
Stephen Savitsky (the "Grantee").
WHEREAS, the Company and the Grantee entered into a Stock Option
Agreement, dated as of March 28, 1990, under the Company's 1983 Incentive Stock
Option Plan, (the "Agreement"); and
WHEREAS, the parties now desire to amend the Agreement as provided
herein;
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. Section 2 of the Agreement, relating to the Option Period, is
hereby amended so that the option granted shall expire on the fifth anniversary
date of the Agreement, subject to earlier termination as provided in the Plan.
Except as expressly amended herein, all other terms, conditions,
agreements, representations and warranties contained in the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date and year first above written.
STAFF BUILDERS, INC.
By: /s/ David Savitsky
------------------------------
GRANTEE
/s/ Stephen Savitsky
----------------------------------
<PAGE>
Exhibit 8
<PAGE>
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of March 28, 1990,
between STAFF BUILDERS, INC., a Delaware corporation (the "Corporation"), and
Stephen Savitsky, (the "Grantee").
The Committee appointed by the Board of Directors of the Corporation
(the "Committee"), responsible for the administration of the Corporation's 1986
Non-Qualified Stock Option Plan (the "Plan"), hereby grants to the Grantee,
effective on March 28, 1990, an option (the "Option") to purchase all or any
part of an aggregate of 234,000 shares of common stock of the Corporation
("Shares") under the Plan at an exercise price of $1.75 per Share.
To evidence the Option, and to set forth its terms and conditions as
provided in the Plan, the Corporation and the Grantee hereby agree as follows:
1. CONFIRMATION OF GRANT SUBJECT TO PLAN
The Corporation hereby evidences and confirms its grant of the
Option to the Grantee on the effective date set forth above. The Option shall
be subject to all of the provisions of the Plan.
<PAGE>
2. NUMBER OF SHARES
The Option shall be for an aggregate of 234,000 Shares.
3. EXERCISE PRICE
The exercise price of the Option shall be $1.75 per Share.
4. MEDIUM AND TIME OF PAYMENT
The exercise price of this Option generally shall be payable in
United States dollars and may be paid in cash or by certified or cashier's
check, payable to the order of the Corporation. The Committee shall have the
power to accept full or partial payment in Shares which shall be valued at fair
market value on the date of payment ("Payment Date").
Payment in full shall be required prior to the issuance of any
Shares pursuant to this Option. In addition, the Corporation may require the
Grantee to pay on the Payment Date income, employment and other withholding
taxes on the Option.
5. TERM AND EXERCISE OF THE OPTION
The Option shall have a term of ten years and one day and may be
exercised immediately.
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The Option shall not be exercisable either in whole or in part
prior to compliance with all requirements of law governing the issuance and
exercise of options. The Corporation shall exercise reasonable due diligence in
order to ensure that the aforementioned requirements are satisfied.
This Option may be exercised by written notice to the Committee
indicating the number of Shares with respect to which it is being exercised.
Such notice shall be signed by the Grantee (or his transferee) and shall be
accompanied by full payment of the exercise price and any income, employment and
other withholding taxes which the Corporation requires the Grantee to pay on the
Option.
6. ISSUANCE OF SHARES OF COMMON STOCK
Certificates for shares of common stock shall be issued upon the
exercise of this Option only when all necessary action shall have been taken by
the Corporation to render the common stock, when issued, validly issued, fully
paid and non-assessable. The Corporation shall exercise reasonable due
diligence in order to ensure that the aforementioned actions are satisfied.
7. NON-TRANSFERABILITY
This Option shall be exercisable only by the Grantee and shall
not be assignable or transferable by him.
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8. RIGHTS IN THE EVENT OF A TERMINATION OF EMPLOYMENT FOR REASONS
OTHER THAN DEATH OR DISABILITY
The Grantee may exercise this Option with respect to all or any
part of the Shares subject thereto only while he is an employee or, with the
consent of the Committee, within three months after his termination of
employment for reasons other than death or Disability and only to the extent
that the term of the Option has not yet expired and the right to exercise had
accrued prior to such termination. For purposes of this Agreement, the term
Disability shall mean a permanent and total disability as defined in Section
2222(e)(3) of the Internal Reve-nue Code of 1986, as may be amended from time to
time (the "Code").
9. RIGHTS IN THE EVENT OF THE GRANTEE'S DEATH
If the Grantee dies while an employee but while he still has the
right to exercise this Option, his estate shall have the right for a period of
one year following the date of such death to exercise the Option to the extent
the right to purchase such shares had accrued at the date of his or her death.
A Grantee's "estate" shall mean his legal representative upon his death or
person who acquires the right to exercise an option by reason of the Grantee's
death. In the event of the death of the employee after his termination of
employment, his estate may within the three month period following such
termination of employment, exercise the Option only to the extent that at the
time of termination of employment, the Option had not yet expired and the right
to exercise had accrued prior to the termination of employment.
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10. RIGHTS IN THE EVENT OF A TERMINATION OF EMPLOYMENT ON ACCOUNT OF
DISABILITY
The Grantee may exercise this Option only within one year after
the date of his termination of employment on account of Disability with the
approval of the Stock Option Committee only to the extent that the term of the
Option has not yet expired and the right to exercise had accrued prior to such
termination.
11. RECAPITALIZATIONS, MERGERS, CONSOLIDATIONS, AND SIMILAR
TRANSACTIONS
(a) In the event the Shares, as presently constituted, shall be
changed into or exchanged for a different number or kind of shares or other
securities of the Corporation or of another corporation (whether by reason of
merger, consolidation, recapitalization, reclassification, split, reverse split,
combination of shares, or otherwise) or if the number of such Shares shall be
increased through the payment of a share dividend, then the Grantee shall have
the right to receive upon exercise of an option under this Plan, the number and
kind of shares or other securities into which each outstanding Share shall be so
changed, or for which each such Share shall be exchanged, or to which each such
Share shall be entitled, as the case may be. The Option Price and other terms
of outstanding options shall be appropriately amended to reflect the foregoing
events; provided, however, that in no event may the Option price
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<PAGE>
on any outstanding options be increased above that existing on the date of
issuance of the option. In the event there shall be any other change in the
number or kind of the outstanding Shares, or of any shares or other securities
into which such Shares shall have been changed, or for which it shall have been
exchanged, then, if the Board of Directors shall, in its sole discretion,
determine that such change equitability requires an adjustment in any option
theretofore granted or which may be granted under the Plan, such adjustments
shall be made in accordance with such determination, subject to the provisio set
forth in the immediately preceding sentence. Notice of any adjustment shall be
given by the Corporation to each holder of an option which shall have been so
adjusted and such adjustment (whether or not such notice is given) shall be
effective and binding for all purposes of the Plan.
(b) Fractional shares resulting from any adjustment in options
pursuant to Section 11 may be settled in cash or otherwise as the Board of
Directors shall determine.
(c) The Board of Directors shall have the power, in the event of the
disposition of all or substantially all of the assets of the Corporation, or the
dissolution of the Corporation, or the merger or consolidation of the
Corporation with or into any other corporation, or the merger or consolidation
of any other corporation into the Corporation, or the making of a tender offer
to purchase all or a substantial portion of the shares of
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the corporation, to amend all outstanding options (upon such conditions as it
shall deem fit) to permit the exercise of all such options prior to the
effective date of any such transaction and to terminate such options as of such
effective date. If the Board of Directors exercise such power, all options then
outstanding shall be deemed to have been amended to permit the exercise thereof
in whole or in part by the Grantee at any time or from time to time as
determined by the Board of Directors prior to the effective date of such
transaction and such options shall be deemed to terminate upon such effective
date.
12. NO LIMITATION ON RIGHTS OF THE CORPORATION
The grant of this Option shall not in any way affect the right of
power of the Corporation to make adjustments, reclassifications or changes in
its capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
13. RIGHTS AS A SHAREHOLDER
The Grantee or a transferee of the Grantee shall have no rights
as a shareholder with respect to any Shares covered by the Option prior to the
date the Option is exercised by the Grantee or the transferee of the Grantee.
No adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for which
the record date is prior to such date.
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14. SHARES OF COMMON STOCK
The Shares of Common Stock covered by this Option shall be
nonvoting and entitled to no dividends prior to the exercise of the Option.
15. DISPOSITION OF COMMON STOCK
No disposition of common stock covered by this Option shall be
effective prior to a thirty day written notice by the Grantee to the Committee
of such transfer and the payment by such Grantee of any withholding taxes due as
a result of such disposition. All stock certificates issued pursuant to the
exercise of the Option shall bear notice of this provision.
In addition, the Committee may, as a condition precedent to the
exercise of the Option, require the Grantee or a transferee of the Grantee to
enter into such agreements or to make such representations as may be required to
make lawful under the laws of the United States or any state the exercise of the
Option and the ultimate disposition of the shares acquired by such exercise.
16. NO OBLIGATION TO EXERCISE OPTION
The granting of the Option shall impose no obligation upon the
Grantee to exercise the Option.
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17. PLAN NOT A CONTRACT OF EMPLOYMENT
Neither the Plan nor this Agreement is a contract of employment,
and the terms of employment of the Grantee shall not be affected in any way by
the Plan or this Agreement except as specifically provided therein. Neither the
establishment of the Plan nor the execution of this Agreement shall be construed
as conferring any legal rights upon the Grantee for a continuation of
employment, nor shall it interfere with the right of the Corporation or any
subsidiary to discharge the Grantee and to treat him without regard to the
effect which such treatment might have upon him as a Grantee.
18. NOTICE
Notice to the Committee shall be deemed given if in writing and
mailed to the Secretary of the Corporation by first-class, certified mail at the
then principal office of the Corporation.
19. INTERPRETATION OF AGREEMENT
This Agreement and the Option evidenced hereby are subject to the
terms of the Plan. A copy of the Plan has been delivered, together with this
Agreement, to the Grantee, receipt of which is hereby acknowledged. In the
event of any conflict between the terms of the plan and of this Agreement, the
terms of the Plan shall govern.
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The Committee has the final authority to interpret and construe the
terms of the Plan and of this Agreement and any such interpretations and
constructions by the Committee shall be liable for any action, interpretation or
construction made in good faith with respect to the Plan or this Agreement.
20. GOVERNING LAW
Except to the extent preempted by federal law, this Agreement
shall be construed and enforced in accordance with, and governed by, the laws of
the State of Delaware.
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IN WITNESS WHEREOF, the Corporation and the Grantee have duly
executed this Agreement.
Attest: STAFF BUILDERS, INC.
/s/ David Savitsky By: /s/ Gordon J. Gerard
- --------------------------- --------------------------
Secretary
/s/ Stephen Savitsky
------------------------------
Grantee
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EXHIBIT 12
<PAGE>
STAFF BUILDERS, INC.
1994 PERFORMANCE-BASED STOCK OPTION PLAN
1. PURPOSE. Staff Builders, Inc., a Delaware corporation (the
"Company"), intends that this 1994 Performance-Based Stock Option Plan (the
"Plan") will provide incentive to officers of the Company (which for purposes of
the Plan shall include its wholly-owned subsidiaries) to continue and increase
their efforts to improve operating results, to remain in the employ of the
Company and to have a greater financial interest in the Company through
ownership of its Common Stock.
2. ADMINISTRATION. The Compensation and Stock Option Committee
of the Company appointed by the Board of Directors of the Company (the
"Committee"), and consisting of no fewer than two directors, shall administer
the Plan. The members of the Committee must be "disinterested;" accordingly,
they may not have been for at least one year prior to the time of their
appointment, and shall not be, during the period they serve on the Committee,
granted or awarded equity securities pursuant to the Plan or any other plan for
the granting of stock, stock options, or similar rights that is maintained by
the Company or any of its affiliates, except that participation in an ongoing
securities acquisition plan meeting the conditions of paragraph (d)(2)(i) or in
a "formula plan" meeting the conditions of paragraph (c)(2)(ii) of Reg. Section
240.16b-3 of the Securities and Exchange Commission, and an election to receive
an annual retainer fee in cash or in securities or partly in cash and partly in
securities, shall not disqualify a director from being a disinterested person.
The Committee shall have full power to construe and interpret the Plan and to
establish and amend rules and regulations for its administration. All action
taken and decisions made by the Committee pursuant to the Plan shall be final
and conclusive.
3. ELIGIBILITY. Persons eligible to receive options shall be
executive officers regularly providing services to the Company. Nothing
contained in the Plan shall be deemed to require the Company to continue the
employment of, or any other contractual arrangement with, any optionee.
4. STOCK SUBJECT TO THE PLAN. Stock to be offered under the Plan
shall be shares of the Company's Common Stock, par value $.01 per share, which
may be authorized but unissued shares or shares acquired by the Company and held
in its treasury, as the Board of Directors may determine. Subject to Section 6
of the Plan, not more than 3,400,000 shares of Common Stock shall be sold on
exercise of options granted under the Plan. For purposes of the Plan, the term
"Common Stock" includes any stock into which such Common Stock shall have been
changed or any stock resulting from any reclassification of such Common Stock.
5. AWARD OF OPTIONS. The Committee may, in its discretion, grant
options under the Plan from time to time prior to the expiration of ten years
from the date on which the Corporation's Board of Directors adopts this Plan.
The Committee may grant options effective as of any date within such ten-year
period as is specified by the Committee in the Stock Option Agreement (defined
below in Section 7(l)) relating to such options. The shares covered by the
unexercised portion of any terminated or expired options shall become available
again for the grant of options under the Plan.
<PAGE>
6. ADJUSTMENTS.
(a) Subject to any required action by the stockholders of the
Company, in the event that the outstanding shares of Common Stock are hereafter
increased or decreased or changed into or exchanged for a different number or
kind of shares or other securities of the Company or of another corporation by
reason of reorganization, merger, consolidation, recapitalization, reclas-
sification, stock split, combination of shares, share dividends or the sale of
additional shares or conversion of securities convertible into such shares the
Committee shall adjust the number and kind of shares for the purchase of which
options may be granted under the Plan and the number and kind of shares as to
which outstanding options, or portions thereof then unexercised, shall be
exercisable. In any such case, the Committee shall make such adjustment in
outstanding options without change in the total price applicable to the
unexercised portion of the option and with a corresponding adjustment in the
option price per share.
(b) Should the Company sell all or substantially all of its assets
and discontinue its business, or merge or consolidate with another entity, or
liquidate or dissolve in connection with those events, then, in lieu of its
obligation under Section 6(a), the Company's Board of Directors shall amend or
adjust both the Plan and outstanding options so as to terminate the Plan com-
pletely, or to continue the Plan with respect to the exercise of options which
were exercisable or became exercisable at the date the Board of Directors
adopted the plan of sale, merger, consolidation, or liquidation. In any such
case, however, each optionee will be given either (i) a reasonable time in which
to exercise his options (to the extent possible under the options terms as set
forth in Section 7(c)) before the effectiveness of the sale and discontinuation,
merger, consolidation or liquidation, or (ii) the right to obtain, for his
payment of the option price, an equivalent amount of any securities such
optionee would have been entitled to obtain in consequence of that event, had he
exercised his options (to the extent possible under the options terms as set
forth in Section 7(c)) immediately before the plan of sale and discontinuation,
merger, consolidation, or liquidation was adopted.
(c) Should the Company be recapitalized in a transaction not
covered by Section 6(a) by the issuance of any other class or classes of
securities in exchange for Common Stock, the Board of Directors shall amend the
Plan and outstanding options to reflect an equivalent number of units of such
securities as being subject to the Plan and such options and to reflect an
adjusted option price per unit of such securities as would equitably be obtained
in accordance with the terms otherwise applicable to the actual exchange.
(d) Neither Section 6(b) nor 6(c) will require the Company to
issue any fractional share under the Plan or upon exercise of outstanding
options; and any amount payable for option exercise will be appropriately
reduced in respect of any such fractional shares otherwise required by operation
of those Sections, but not issued by reason of this Section 6(d).
7. TERMS OF OPTION. All options under the Plan shall be subject
to the following conditions and to such other conditions as the Committee and
the optionee may agree:
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(a) OPTION TERM. No option granted under the Plan will be
exercisable earlier than the date six months following the date on which the
option is granted or after the expiration of ten years from the date on which
the option is granted.
(b) OPTION EXERCISE PRICE. The exercise price of an option
granted hereunder shall be equal to the average of the Closing Prices (as
hereinafter defined) of the Company's Common Stock for the twenty (20)
consecutive trading days ending on the trading day prior to the date on which
the option is granted (the "Option Price"); provided, however, if on the date on
which the option is granted the Company's Common Stock is not listed on any
national securities exchange or quoted on an automated quotation system of a
registered securities association, the Option Price shall be the fair value per
share of the Common Stock as determined in good faith and on a reasonable basis
by the Board of Directors of the Company (the "Fair Market Value").
(c) VESTING SCHEDULE. Options granted shall become exercisable at
such times and in such amounts as set forth below:
(i) Subject to Section 7(a) hereof, if prior to the first
anniversary of the date of grant, the Closing Price for
the Company's Common Stock for any ten consecutive
trading days is ten percent (10%) or more in excess of
the Option Price, then twenty-five percent (25%) of the
options granted on such date shall become immediately
exercisable.
(ii) If during the second year after the date of grant, the
Closing Price for the Company's Common Stock for any ten
consecutive trading days is twenty percent (20%) or more
in excess of the Option Price, then fifty percent (50%)
of the options granted on such date (less any options
vested pursuant to subparagraph (i) above) shall become
immediately exercisable.
(iii) If during the third year after the date of grant, the
Closing Price for the Company's Common Stock for any ten
consecutive trading days is thirty percent (30%) or more
in excess of the Option Price, then seventy-five percent
(75%) of the options granted on such date (less any
options vested pursuant to subparagraphs (i) and (ii)
above) shall become immediately exercisable.
(iv) If during the fourth year after the date of grant, the
Closing Price for the Company's Common Stock for any ten
consecutive trading days is forty percent (40%) or more
in excess of the Option Price, then the balance of the
options granted on such date shall become immediately
exercisable.
(v) Notwithstanding the above, if at any time prior to the
fourth anniversary of the date of grant, there is a
Change of Control (as hereinafter defined) then (A) if
the Change of Control Price (as hereinafter defined) is
forty percent (40%) or more in excess of the Option
Price, then all options granted on such date of
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<PAGE>
grant which have not yet become exercisable shall become
immediately exercisable; (B) if the Change of Control
occurs during the first three years after the date of
grant of the options and the Change of Control Price is
at least thirty percent (30%) but less than forty percent
(40%) in excess of the Option Price, then seventy-five
percent (75%) of all options granted on such date of
grant (less any options previously vested) shall become
immediately exercisable; (C) if the Change of Control
occurs during the first two years after the date of grant
of the options and the Change of Control Price is at
least twenty percent (20%) but less than thirty percent
(30%) in excess of the Option Price, then fifty percent
(50%) of all options granted on such date of grant (less
any options previously vested) shall become immediately
exercisable; and (D) if the Change of Control occurs
during the first year after the date of grant of the
options and the Change of Control Price is at least ten
percent (10%) but less than twenty percent (20%) in
excess of the Option Price, then twenty-five percent
(25%) of all options granted on such date of grant (less
any options previously vested) shall become immediately
exercisable.
(d) CERTAIN DEFINITIONS.
For purposes of the Plan, the following terms shall have the
meanings set forth below:
(i) "Cause", with respect to the termination of an optionee's
employment by the Company, shall mean (A) embezzlement or
other misappropriation of property of the Company by the
optionee; or (B) the optionee's conviction of a crime
which constitutes a felony;
(ii) A "Change of Control" shall be deemed to occur when a
person, corporation, partnership, association or entity
(A) acquires a majority of the Company's outstanding
voting securities, or (B) acquires securities bearing a
majority of voting power with respect to election of
directors of the Company or (C) acquires all or
substantially all of the assets of the Company, or (D)
enters into a contract with respect to any of the
foregoing;
(iii) "Change of Control Price" shall mean the price per share
paid for the Company's Common Stock as a result of a
Change of Control;
(iv) "Closing Price" shall mean (i) the closing sale price of
the Company's Common Stock on any national securities
exchange on which the Company's Common Stock shall be
registered and listed or (ii) if the Company's Common
Stock is traded in the over-the-counter market and quoted
on the National Association of Securities Dealers Inc.
National Market ("NASDAQ-NM"), the
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closing sale price of the Common Stock on NASDAQ-NM or
(iii) if the Company's Common Stock shall not at the time
be listed on any such exchange or quoted on NASDAQ-NM,
but is traded in the over-the-counter market and quoted
on an automated quotation system of a registered
securities association, the average of the closing bid
and asked prices for such stock, as quoted on such
system; and
(v) "Disability", with respect to the termination of an
optionee's employment by the Company, shall mean the
optionee's physical or mental inability, for a
substantially consecutive period of one hundred eighty
(180) days in any consecutive twelve (12) month period,
to render the services to be performed by him for the
Company.
When an installment of options has become exercisable, the optionee
may exercise that installment, in whole or in part, at any time prior to the
expiration or termination of the options. Subject to Section 7(a) of the Plan,
the Committee may accelerate the time at which outstanding options may be
exercised.
Notwithstanding any schedule for vesting stated above or other
exercise schedule or entitlement which effectively precludes full and immediate
exercise of the related option, any option will become immediately exercisable
in full upon the occurrence of the optionee's death, Disability, termination of
such optionee by the Company without Cause or a determination by the Board of
Directors that immediate exercisability would be in the best interests of the
Company and advisable for protection of the rights intended to be granted under
the option.
(e) EXERCISE OF OPTIONS. Only the optionee to whom the Company
has granted such rights or his guardian or legal representative may exercise
options. Shares may be purchased from time to time on the exercise of options
only by sending a written notice of election to exercise in the form attached to
the Stock Option Agreement, together with full payment of the option price
therefor, to the Secretary of the Company (i) in cash (or an equivalent check or
other form of payment acceptable to the Company), or (ii) if the Committee shall
approve in its sole discretion, other Common Stock of the Company currently
registered in the name of, or beneficially owned by, the holder and surrendered
in due form for transfer to the Company. In the case of payment in the
Company's Common Stock, such stock shall be valued at the Closing Price as of
the date of surrender of the Common Stock (or if no Closing Price was available
for such date, on the next preceding day for which a Closing Price was
available); provided, however, if on the date of surrender the Company's Common
Stock is not listed on any national securities exchange or quoted on an
automated quotation system of a registered securities association, then such
stock shall be valued at its then Fair Market Value.
(f) TERMINATION OF OPTIONS. Subject to Section 7(c) hereof, if an
optionee ceases to be employed by the Company for any reason other than death,
Disability or termination without Cause, the exercise period for all options
theretofore granted to him shall expire three months after his employment
terminates and the number of shares into which such options are exercisable will
be limited to the number of shares into which such options were exercisable by
him on the date he ceased to be employed. Notwithstanding the
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<PAGE>
provisions of this Section 7(f), nothing herein will extend the terms of the
options specified in Section 7(a) of the Plan.
(g) PAYMENT OF TAXES. Upon settlement of any options, it shall be
a condition to the obligation of the Company that the optionee pay to the
Company such amount as the Company may request for the purpose of satisfying its
liability to withhold federal, state or local income or other taxes.
(h) APPLICABLE REGULATIONS. The Company shall not be obligated to
sell or issue any shares upon exercise of any option if the exercise thereof or
the delivery of shares thereunder would constitute a violation of any federal or
state securities law or listing requirements of any national securities exchange
or automated quotation system of a registered securities association on which
Common Stock may be listed or quoted.
(i) PURCHASE FOR INVESTMENT. In the event that the Company has
not registered the shares with respect to which options are being exercised
under the Securities Act of 1933, as amended, each optionee electing to purchase
such shares will be required to represent that he is acquiring such shares for
investment purposes only and not with a view to the sale or distribution
thereof, and to make such other representations as are deemed necessary by
counsel to the Company. Stock certificates evidencing such unregistered shares
acquired upon exercise of options shall bear a restrictive legend stating as
follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE PLEDGED OR HYPOTHECATED AND
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT OF
1933 OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT, UNLESS IN THE OPINION
OF COUNSEL FOR THE COMPANY SUCH A LEGEND IS NOT NECESSARY.
(j) RIGHTS AS A STOCKHOLDER. The optionee shall have no rights as
a stockholder with respect to any shares covered by an option until the date of
issuance of a stock certificate for such shares. Without limiting the
foregoing, the Company shall make no adjustment for dividends or other rights
for which the record date is prior to the date such stock certificate is issued.
(k) TRANSFER OF OPTION. A stock option shall not be transferable
other than by will or by the laws of descent and distribution.
(l) FORM OF OPTION. Options shall be evidenced by Stock Option
Agreements ("Stock Option Agreements") in such form as shall not be inconsistent
with the Plan. Any Stock Option Agreement entered into pursuant hereto may
contain such other terms, provisions and conditions not inconsistent herewith as
shall be determined by the Committee.
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<PAGE>
8. USE OF PROCEEDS. Proceeds from the sale of Common Stock under
the Plan shall be added to the general funds of the Company.
9. INDEMNIFICATION OF COMMITTEE. In addition to such other
rights of indemnification as they may have as members of the Board of Directors
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 or any award made under 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, at its own expense, to handle and
defend the same before such Committee member undertakes to handle it on his own
behalf.
10. SUCCESSORS IN INTEREST. The Plan may be adopted and continued
by any successor or successors of the Company, whether by merger, consolidation,
sale of assets or otherwise. Whether or not the Plan is so adopted and
continued, the obligations of the Company under the Plan shall be binding upon
any such successor or successors, and for this purpose reference in the Plan to
the Company shall be deemed to include any such successors.
11. AMENDMENT OR TERMINATION OF THE PLAN. The Board of Directors
may in its discretion terminate the Plan with respect to any shares for which
options have not theretofore been granted. The Board of Directors and the
Committee shall have the right to alter or amend the Plan or any part thereof
from time to time; PROVIDED, HOWEVER, no change which would impair the right of
an optionee may be made in any options theretofore granted, without the consent
of such optionee; and PROVIDED, FURTHER, that the Board of Directors or the
Committee may not, without appropriate approval of not less than a majority of
the votes of holders of shares of Common Stock (or other voting stock entitled
to vote thereon at the time outstanding) present in person or by proxy at a
meeting of holders of such shares, alter or modify the Plan so as to increase
the maximum amount of Common Stock which may be issued under the Plan, extend
the term of the Plan or of options granted thereunder, reduce the price at which
options may be granted or exercised, change the eligibility requirements for
participation in the Plan, or change the eligibility requirements for, or permit
the granting of options to, members of the Committee.
12. EXPENSES. The Company shall bear the expenses of
administering the Plan, other than taxes or similar charges payable by any
optionee.
13. EFFECTIVE DATE. The Plan shall be effective upon the date on
which approval thereof is obtained from the stockholders of the Company.
14. FUNDING. Anything herein contained to the contrary
notwithstanding, the Company shall not be required to set aside any amount at
any time to fund any obligations of the Company to make any payments to any
optionee.
15. RIGHT OF DISCHARGE RESERVED. Nothing in the Plan shall confer
upon an optionee or any other person the right to continue in the employment of
the Company or
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any Subsidiary or affect any right which the Company or such Subsidiary may have
to terminate the employment of the optionee or any other person.
16. 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.
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<PAGE>
EXHIBIT 13
<PAGE>
STAFF BUILDERS, INC.
October 1, 1994
To the Person Named as
Optionee on Schedule A
to this Agreement
Re: Grant of Nonqualifying Stock Options
to Purchase Shares of the Common
Stock of Staff Builders, Inc.
-----------------------------------------
Dear Optionee:
You and Staff Builders, Inc., a Delaware corporation (the
"Corporation"), hereby agree as follows:
1. REFERENCE. This is the Stock Option Agreement referred to in
Section 7(l) of the Corporation's 1994 Performance-Based Stock Option Plan (the
"Plan"). The stock option this Agreement grants is a Nonqualifying Stock
Option, as set forth in Section 5 below. This Agreement incorporates all terms,
conditions and provisions of the Plan.
2. STOCK OPTION.
(a) The Corporation hereby grants to the Optionee the option (the
"Stock Option") to purchase that number of shares of Common Stock of the
Corporation, par value $.01 per share, set forth on Schedule A hereto. The
Corporation will issue these shares as fully paid and nonassessable shares upon
the Optionee's exercise of the Stock Option. The Optionee may exercise the
Stock Option in accordance with this Agreement any time between six months and
the tenth anniversary of the date of grant of the Stock Option evidenced by this
Agreement, unless earlier terminated according to the terms of this Agreement.
(b) The Stock Option shall vest and become exercisable pursuant
to Section 7(c) of the Plan.
3. EXERCISE OF STOCK OPTION. The Optionee may exercise the Stock
Option in whole or in part by written notice delivered to the Corporation in the
form of Schedule B to this Agreement. The Optionee shall enclose with each such
notice payment by cash or by valid check in an amount equal to the number of
shares as to which his exercise is made, multiplied by the option price
therefor. The Optionee must exercise the Stock Option on or before October 1,
2004 after which it will lapse.
4. PURCHASE PRICE. The option price per share shall be the Option
Price as defined in Section 7(b) of the Plan.
<PAGE>
To the Person Named as
Optionee on Schedule A
October 1, 1994
Page 2
5. TAX TREATMENT OF THE STOCK OPTION. The following is a summary of
the federal income tax consequences of the issuance and exercise of
nonqualifying stock options under the Plan to optionees and to the Corporation
under the Internal Revenue Code of 1986, as amended (the "Code"). The following
discussion does not purport to be complete and does not cover, among other
things, state and local tax treatment of participation in the Plan.
Furthermore, differences in optionees' financial situations may cause federal,
state and local tax consequences of participation in the Plan to vary.
Therefore, each optionee in the Plan is urged to consult his own accountant,
legal counsel or other financial advisor regarding the particular tax
consequences to him of participation in the Plan, including the applicability
and effect of any state or local tax laws, and of changes in applicable tax
laws.
The grant of a nonqualifying stock option will not result in the
recognition of taxable income to the optionee for federal income tax purposes or
in deduction to the Corporation. Upon the exercise of a nonqualifying stock
option, the optionee will recognize ordinary income for federal income tax
purposes in an amount equal to the excess of the fair market value of the shares
of Common Stock of the Corporation over the exercise price. Such amount may be
deductible by the Corporation if it complies with applicable reporting
requirements.
If an optionee disposes of any shares of Common Stock received upon
the exercise of a nonqualifying stock option, such optionee will recognize a
capital gain or loss for federal income tax purposes equal to the difference
between the amount realized on the disposition of such shares and the fair
market value of such shares at the time the option was exercised. The gain or
loss will be either long-term or short-term, depending on the holding period.
The Corporation will not be entitled to any tax deduction in connection with
such disposition of shares.
6. NO RIGHTS IN OPTION STOCK. Optionee shall have no rights as a
stockholder in respect of any shares subject to the Stock Option unless and
until Optionee has exercised the Stock Option in complete accordance with the
terms hereof, and shall have no rights with respect to shares not expressly
conferred by this Agreement.
7. SHARES RESERVED. The Corporation shall at all times during the
term of this Agreement reserve and keep available such number of shares of
Common Stock as will be sufficient to satisfy the requirements of this
Agreement, and shall pay all original issue taxes on the exercise of the Stock
Option, and all other fees and expenses necessarily incurred by the Corporation
in connection therewith; provided, however, that pursuant to Section 7(g) of the
Plan, upon settlement of the Stock Option, it shall be a condition to the
obligation of the Corporation that the Optionee pay to the Corporation such
amount as the Corporation may request for the purpose of satisfying its
liability to withhold federal, state or local income or other taxes.
8. NONASSIGNABILITY. The Stock Option and this Agreement shall not
be encumbered, disposed of, assigned or transferred in whole or part, and,
except as described in the Plan, may only be exercised by the Optionee unless
the prior written consent of the
<PAGE>
To the Person Named as
Optionee on Schedule A
October 1, 1994
Page 2
Corporation has been obtained. All shares of Common Stock purchased pursuant to
this Agreement shall be purchased for investment by the Optionee.
9. EFFECT UPON EMPLOYMENT. Nothing in this Agreement shall confer
on the Optionee any right to continue in the employment of the Corporation or
shall interfere in any way with the right of the Corporation to terminate
Optionee's employment at any time.
10. SUCCESSORS. This agreement shall be binding upon any successor
of the Corporation.
In order to indicate your acceptance of the Stock Option on the above
terms and conditions, kindly sign the enclosed copy of this letter agreement and
return it to the Corporation.
STAFF BUILDERS, INC.
By:
-------------------------------------
Name:
Title:
Accepted and Agreed to:
/s/ Stephen Savitsky
- ---------------------------------------
<PAGE>
SCHEDULE A
NONQUALIFYING STOCK OPTIONS
Date of Grant: October 1, 1994
Name of Optionee: Stephen Savitsky
Number of Shares as to
which the Option is Granted: 1,000,000
Option Price per Share: $3.136
<PAGE>
SCHEDULE B
NOTICE OF ELECTION TO EXERCISE
STAFF BUILDERS, INC.
1981 Marcus Avenue
Lake Success, New York 11042
ATTENTION: _________________
Gentlemen:
I hereby irrevocably elect to exercise the Stock Option held by me
under the 1994 Performance-Based Stock Option Plan of Staff Builders, Inc. (the
"Company") to purchase shares of the Common Stock, par value $.01 per share, of
the Company at an option price of $__________ per share.
Enclosed is a check, payable to the order of the Company, in the
amount of $__________.
A completed Exercise of Stock Option Payment Remittance Form is
attached.
Please issue __________ certificate(s) for __________ shares each and,
if applicable, a separate certificate for the remaining _________ shares in my
name as shown below.
_______________________________________
Name
_______________________________________
Taxpayer I.D. Number
(i.e. Social Security/Insurance Number)
_______________________________________
Number and Street
_______________________________________
City State Zip Code
Please forward the certificate(s) to me at the following address:
_______________________________________
Number and Street
_______________________________________
City State Zip Code
<PAGE>
This election incorporates, and is subject to, all terms and
conditions of the Plan and my Stock Option Agreement with the Company.
I am acquiring the foregoing shares for investment purposes only, and
not with a view to their sale or distribution.
Dated: ________________________
-----------------------------------
Signature
----------------------------------
Print Name
-2-
<PAGE>
SCHEDULE B-1
STAFF BUILDERS, INC.
1994
PERFORMANCE-BASED STOCK OPTION PLAN
Exercise of Stock Option Payment Remittance Form
In fulfillment of the accompanying Notice of Election to Exercise,
which advises you of my intention to exercise options to purchase __________
shares of Staff Builders, Inc. Common Stock at an option price of $_________ per
share, for a total purchase price of $___________, I enclose in full payment of
the purchase price a check in the amount of $___________ made payable to Staff
Builders, Inc.
Dated:_______________
----------------------------------------
Signature
----------------------------------------
Type Name
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment No. 4 is true, complete
and correct.
Dated: February 21, 1995
/s/ Stephen Savitsky
----------------------------------------
Stephen Savitsky
