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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
OCTOBER 26, 1995
Date of Report (Date of earliest event reported)
STAFF BUILDERS, INC.
(Exact name of Registrant as Specified in its Charter)
DELAWARE 0-11380 11-2650500
(State or other jurisdiction (Commission File No.) (IRS Employer
of incorporation) Identification No.)
1983 MARCUS AVENUE, LAKE SUCCESS, NEW YORK 11042
(Address of Principal Executive Offices) (Zip Code)
(516) 358-1000
(Registrant's telephone number, including area code)
NOT APPLICABLE
(Former Name or Former Address, if Changed Since Last Report) (Zip Code)
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ITEM 5. OTHER EVENTS.
On October 26, 1995, following approval by its
stockholders, Staff Builders, Inc. (the "Company") implemented a
plan of recapitalization (the "Recapitalization") by which (i)
Article FOURTH of the Company's Restated Certificate of
Incorporation was amended (the "Amendment") to eliminate the
Company's previously authorized single class of common stock (the
"Common Stock") and the Company's time phased voting rights plan
(the "Voting Rights Plan") by which each Long-Term Share (as
described below) was entitled to ten votes, and to authorize for
issuance 50,000,000 shares of Class A Common Stock, $.01 par
value per share (the "Class A Common Stock"), and 1,450,000
shares of Class B Common Stock, $.01 par value per share (the
"Class B Common Stock"), subject in the case of the Class B
Common Stock to adjustment as described below, and (ii) each
share of Common Stock which was a Long-Term Share as of both
August 28, 1995 and October 26, 1995 was reclassified, changed
and converted automatically into one share of Class B Common
Stock and each other share of Common Stock was reclassified,
changed and converted automatically into one share of Class A
Common Stock. The newly-created Class A Common Stock is
identical in all respects to the Common Stock except that a
holder of Class A Common Stock is entitled to one vote for each
share of Class A Common Stock held of record by such holder as of
the record date for a meeting of stockholders, regardless of how
long the shares have been owned by the beneficial owner of such
Class A Common Stock. The newly-created Class B Common Stock is
identical in all respects to the Common Stock and the Class A
Common Stock except that (i) a holder of Class B Common Stock is
entitled to ten votes for each share of Class B Common Stock held
of record by such holder as of the record date for a meeting of
stockholders, regardless of how long the shares have been owned
by the beneficial owner of such Class B Common Stock, and (ii)
each share of Class B Common Stock will be convertible into one
share of Class A Common Stock (and will automatically convert
into one share of Class A Common Stock upon any transfer, subject
to certain limited exceptions). Except as otherwise required by
the Delaware General Corporation Law, shares of Class A Common
Stock and Class B Common Stock will vote as a single class on all
matters submitted to a vote by the stockholders.
The Amendment authorizes for issuance 1,450,000 shares
of Class B Common Stock, which represents an estimate by the
Company's Board of Directors of the number of shares of Class B
Common Stock to be issued in the Recapitalization. Under the
Voting Rights Plan (which was eliminated by the Amendment) the
precise number of shares of Class B Common Stock to be issued in
the Recapitalization (which equals the number of shares of Common
Stock which are Long-Term Shares at both August 28, 1995 and
October 26, 1995) cannot be determined with certainty as of the
date of this report. The Voting Rights Plan provided that in
order for shares of Common Stock to be Long-Term Shares, they
must have the same beneficial owner for at least 48 consecutive
calendar months (dating from the first day of the first calendar
month on or after the holder acquired beneficial ownership of
such shares) prior to the record date for determining the holders
entitled to vote on any matter submitted to a vote by the
stockholders. Shares of Common Stock held of record by the
current holder for at least a 48 consecutive calendar month period
are presumed to be owned beneficially by the current record
holder for such period and are thus Long-Term Shares. However,
shares of Common Stock held of record in "street" or "nominee"
name are presumed to be owned beneficially by the current
beneficial owner for less than such a 48
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consecutive calendar month period are thus presumed not to be
Long-Term Shares. This latter presumption may be rebutted by
presentation to the Company of evidence (in accordance with
procedures established by the Company) that such beneficial owner
has had beneficial ownership of such shares for at least the
required 48 consecutive calendar month period.
Because the Company cannot know the number of shares
held in "street" or "nominee" name which have been owned
beneficially by the same stockholder for at least a 48
consecutive calendar month period (dating from the first day of
the first calendar month on or after the holder acquired
beneficial ownership of such shares), the number of shares of
Class B Common Stock to be issued in the Recapitalization cannot
be determined precisely. Accordingly, if the Company's Board of
Directors determines that a number of shares of Class B Common
Stock other than 1,450,000 should be issued in the
Recapitalization, then the Company will file a further amendment
to the Restated Certificate of Incorporation to increase the
number of authorized shares of Class B Common Stock to the extent
that more than 1,450,000 shares are required to be issued in the
Recapitalization and to reduce the number of authorized shares of
Class B Common Stock to the extent that fewer than 1,450,000
shares are required to be issued in the Recapitalization.
ITEM 7. EXHIBITS.
(c) EXHIBITS
3.1 Certificate of Amendment of the Restated
Certificate of Incorporation of the Company,
filed with the Secretary of State of the
State of Delaware on October 26, 1995.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
STAFF BUILDERS, INC.
Dated: October 27, 1995 By: /s/ Gary Tighe
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Name: Gary Tighe
Title: Senior Vice President,
Finance and Chief Financial
Officer
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EXHIBIT INDEX
Exhibit Number Description of Exhibit
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3.1 Certificate of Amendment of the
Restated Certificate of Incorporation
of the Company, filed with the
Secretary of State of the State
of Delaware on October 26, 1995.
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Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF THE
RESTATED CERTIFICATE OF INCORPORATION
OF
STAFF BUILDERS, INC.
(UNDER SECTION 242 OF THE DELAWARE GENERAL CORPORATION LAW)
THE UNDERSIGNED, being the President and Chief Executive Officer of Staff
Builders, Inc., a Delaware corporation (the "Corporation"), does hereby
certify that:
1. The name of the Corporation is Staff Builders, Inc.
2. The Restated Certificate of Incorporation of the Corporation is hereby
amended to amend paragraphs (a) through (j) (and the introductory language
thereto) of Article FOURTH to read as follows:
FOURTH: The total number of shares of stock that the Corporation shall
have authority to issue is 51,460,000, consisting of 50,000,000 shares of
Class A Common Stock, par value $.01 per share ("Class A Common Stock"),
1,450,000 shares of Class B Common Stock, par value $.01 per share
("Class B Common Stock" and, collectively with Class A Common Stock,
"Common Stock"), and 10,000 shares of Preferred Stock, par value $1.00
per share (the "Preferred Stock"). Effective upon the filing with the
Secretary of State of the State of Delaware of this Certificate of
Amendment of the Corporation's Restated Certificate of Incorporation (the
"Effective Time"): (i) each outstanding share of common stock, par
value $.01 per share ("Old Common Stock"), of the Corporation that was
a Long-Term Share on the record date for the meeting of the stockholders
of the Corporation at which this Certificate of Amendment was approved
(the "Record Date") and continues to be a Long-Term Share at the
Effective Time shall, without any action on the part of the holder
thereof, be reclassified as, and converted into, one fully paid and
nonassessable share of Class B Common Stock of the Corporation, and (ii)
every other share of Old Common Stock of the Corporation outstanding or
held in treasury shall, without any action on the part of the holder
thereof, be reclassified as, and converted into, one fully paid and
nonassessable share of Class A Common Stock of the Corporation. Following
the initial issuance of shares of Class B Common Stock to effect the
above described reclassification, the Corporation may only issue shares
of the Class B Common Stock in the form of a distribution pursuant to a
stock dividend on, or split-up or reverse split-up of, the shares of
Class B Common Stock and only to the holders of the then outstanding
shares of Class B Common Stock. At any time shares of the Class B Common
Stock are
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outstanding, the Corporation may issue shares of Common Stock in the form
of a distribution pursuant to a stock dividend on, or split-up or reverse
split-up of, the shares of Common Stock only if such stock dividend,
split-up or reverse split-up is made pro rata to the holders of the Class A
Common Stock and Class B Common Stock solely in shares of their respective
classes.
The designations, powers, preferences and rights, and the qualifications
and restrictions, of the Common Stock and the Preferred Stock are as
follows:
(a) Except as otherwise required by statute, as set forth in a
resolution or resolutions of the Board of Directors as hereinafter
provided, or as otherwise provided herein, the holders of shares of
Common Stock of the Corporation shall (i) possess the exclusive right to
vote for the election of directors and for all other corporate purposes,
and (ii) vote together without regard to class. Except as otherwise
required by the General Corporation Law of Delaware or as otherwise
provided herein, each share of Class A Common Stock and each share of
Class B Common Stock shall have identical powers, preferences and rights,
including rights in liquidation and to dividends and distributions. With
respect to any proposed amendment to the Restated Certificate of
Incorporation of the Corporation that would increase or decrease the
number of authorized shares of either Class A Common Stock or Class B
Common Stock (other than any such amendment approved by the stockholders
of the Corporation at the same meeting at which this Certificate of
Amendment was approved), increase or decrease the par value of the shares
of Class A Common Stock or Class B Common Stock, or alter or change the
powers, preferences, relative voting power or special rights of the shares
of Class A Common Stock or Class B Common Stock so as to affect them
adversely, the approval of a majority of the votes entitled to be cast
by the holders of the class adversely affected by the proposed amendment,
voting separately as a class, shall be obtained in addition to the
approval of a majority of the votes entitled to be cast by the holders of
the Common Stock voting together without regard to class as hereinabove
provided.
(b) A holder of Class A Common Stock shall be entitled to one (1) vote
on each matter submitted to a vote at a meeting of stockholders for each
share of Class A Common Stock held of record by such holder as of the
record date for such meeting.
(c) A holder of Class B Common Stock shall be entitled to ten (10)
votes on each matter submitted to a vote at a meeting of stockholders for
each share of Class B Common Stock held of record by such holder as of
the record
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date for such meeting; provided, however, that for purposes of any vote on a
proposal submitted to stockholders solely under Article EIGHTH of the
Restated Certificate of Incorporation of the Corporation and for purposes of
any vote on a proposal to amend, alter or repeal such Article EIGHTH or
Paragraph (a) or (d) of Article FIFTH, a holder of Class B Common Stock shall
be entitled to one (1) vote for each share of Class B Common Stock held of
record by such holder as of the record date for determining stockholders
entitled to vote on such proposal.
(d) Each share of Class B Common Stock may at any time be converted at
the election of the holder thereof into one share of Class A Common Stock.
Any holder of shares of Class B Common Stock may elect to convert any or all
of such shares at one time or at various times in such holder's discretion.
Such right shall be exercised by the surrender of the certificate
representing each share of Class B Common Stock to be converted to the agent
for the registration of transfer of shares of Class B Common Stock at its
office, or to the Corporation at its principal executive offices, accompanied
by a written notice of the election by the holder thereof to convert and (if
so required by the transfer agent or by the Corporation) by instruments of
transfer, in form satisfactory to the transfer agent and to the Corporation
duly executed by such holder or his duly authorized attorney. The issuance of
a certificate for shares of Class A Common Stock upon conversion of shares of
Class B Common Stock shall be made without charge for any stamp or other
similar tax in respect of such issuance. However, if any such certificate is
to be issued in a name other than that of the holder of the shares of Class B
Common Stock converted, the person requesting the issuance thereof shall pay
to the transfer agent or to the Corporation the amount of any tax which may
be payable in respect of such transfer, or shall establish to the
satisfaction of the transfer agent or the Corporation that such tax has been
paid. As promptly as practicable after the surrender for conversion of a
certificate representing shares of Class B Common Stock and the payment of
any such tax, the Corporation will deliver or cause to be delivered, to the
holder thereof, a certificate representing the number of shares of Class A
Common Stock issuable upon such conversion, issued in such name or names as
such holder may direct. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of the surrender of
the certificate representing shares of Class B Common Stock (if on such date
the transfer books of the Corporation shall be closed, then immediately prior
to the close of business on the first date thereafter that said books shall
be open), and all rights of such holder arising from ownership of shares of
Class B Common Stock shall cease at such time; and the person in
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whose name the certificate representing shares of Class A Common Stock is to
be issued shall be treated for all purposes as having become the record
holder of such shares of Class A Common Stock at such time and shall have and
may exercise all the rights and powers appertaining thereto. The Corporation
shall at all times reserve and keep available, solely for the purpose of
issue upon conversion of outstanding shares of Class B Common Stock, such
number of shares of Class A Common Stock as may be issuable upon the
conversion of such outstanding shares of Class B Common Stock; provided,
however, that the Corporation may deliver shares of Class A Common Stock
which are held in the treasury of the Corporation for shares of Class B
Common Stock that are converted. If any shares of Class A Common Stock
require registration with or approval of any governmental authority under any
federal or state law before such shares of Class A Common Stock may be issued
upon conversion, the Corporation will cause such shares to be duly registered
or approved, as the case may be. The Corporation will endeavor to list shares
of Class A Common Stock required to be delivered upon conversion prior to
such delivery upon any national securities exchange or national automated
quotation system on which the outstanding shares of Class A Common Stock may
be listed or quoted at the time of such delivery. All shares of Class A
Common Stock which may be issued upon conversion of shares of Class B Common
Stock will, upon issue, be fully paid and nonassessable.
(e) No share of Class B Common Stock may be sold or otherwise
transferred in any transaction that results is a change in the beneficial
ownership of such share unless such transaction in an Exempt Transfer. Any
attempted transfer of a share of Class B Common Stock in violation of this
Paragraph (e) shall be treated as an irrevocable election by the holder
thereof to convert such share to a share of Class A Common Stock pursuant to
Paragraph (d) of this Article FOURTH.
(f) For purposes of this Article FOURTH, "Exempt Transfer" shall mean
the occurrence of any of the following events with respect to any share of
the Old Common Stock or Class B Common Stock, as the case may be:
1. The transfer of such share by gift; by devise, bequest or
otherwise through the laws of inheritance or descent; or by a trustee to
a trust beneficiary or beneficiaries under the terms of the trust; or
2. The appointment of a successor trustee, guardian, committee of
an incompetent, conservator or custodian with respect to such share; or
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3. The addition, withdrawal or demise of a beneficiary or
beneficiaries of a trust under the terms of the trust and by reason
of the birth, death, marriage or divorce of any natural person; the
adoption of any natural person; the passage of a given period of
time; the attainment by any natural person of a specific age; or
the creation or termination of any guardianship or custodial
arrangement; or
4. The transfer of record or the transfer of a beneficial
interest or interests in such share where the circumstances
surrounding such transfer clearly demonstrate that no material
change in beneficial ownership has occurred;
provided, in each such case, that (i) the transferee or the transferor
shall have provided to the Corporation, in accordance with the
procedures established by the Board of Directors pursuant to Paragraph
(i) of this Article FOURTH, satisfactory evidence that such change in
beneficial ownership qualifies as an Exempt Transfer, and (ii) such
change was not undertaken in order to circumvent the provisions or
purposes of this Article FOURTH.
(g) For purposes of this Article FOURTH, "Long-Term Share" shall
mean any share of Old Common Stock which has had the same
beneficial owner or owners for at least 48 consecutive
calendar months (dating from the first day of the first full calendar
month on or after the date the holder acquired beneficial ownership of
such share) prior to the Record Date and prior to the Effective Time;
subject, in the case of holders referred to in Paragraph (h) hereof, to
the requirements set forth in such Paragraph.
(h) Any share of the Old Common Stock held of record on the Record
Date and at the Effective Time shall be presumed to be owned
beneficially by the record holder and for the period shown by the
stockholder records of the Corporation. Notwithstanding the preceding
sentence of this Paragraph (h), any share of Old Common Stock held of
record on the Record Date or the Effective Time in "street" or "nominee"
name or by a broker, clearing agency, voting trustee, bank, trust
company or other nominee shall be presumed to have had the same
beneficial owner for a period of less than 48 consecutive calendar
months prior to both the Record Date and the Effective Time. These
presumptions shall be rebuttable by presentation to the Corporation on
or before December 1, 1995, in accordance with the procedures
established by the Corporation as provided in Paragraph (i) hereof, of
satisfactory evidence.
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(i) For purposes of this Article FOURTH, all determinations
concerning changes in beneficial ownership, or the absence of any such
change, shall be made by the Board of Directors or a transfer agent
acting on behalf of the Board of Directors and any such determination
shall be conclusive. In determining whether any share of Old Common
Stock is a Long-Term Share on the Record Date and at the Effective Time
for purposes of this Article FOURTH, the Board of Directors, or any
transfer agent acting on behalf of the Board of Directors, will apply
the same principles as those reflected in the written procedures
theretofore adopted by the Board of Directors for the determination of
the voting rights of the Old Common Stock as in effect immediately prior
to the Record Date. The Board of Directors shall also establish written
procedures from time to time to facilitate such determinations with
respect to Exempt Transfers of the outstanding shares of Class B Common
Stock. Such procedures shall provide, among other things, the manner of
proof of facts that will be accepted. The Board of Directors and any
transfer agent shall be entitled to rely on information concerning
beneficial ownership of the Old Common Stock and the Class B Common
Stock coming to their attention from any source and in any manner
reasonably deemed by them to be reliable, but neither the Board of
Directors nor any transfer agent shall be charged with any other
information concerning the beneficial ownership of the Old Common Stock
or the Class B Common Stock.
(j) For purposes of this Article FOURTH, the terms "beneficial owner"
and "beneficially owned" shall be defined in accordance with Rule 13d-3
promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended (or any subsequent
provisions replacing such act or rule), except as provided otherwise in
this Article FOURTH.
3. This Certificate of Amendment of the Certificate of Incorporation of
the Corporation has been duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment as of the 26th day of October, 1995.
/s/ Stephen Savitsky
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Name: Stephen Savitsky
Title: President and Chief Executive
Officer
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