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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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STAFF BUILDERS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-3139732
(State of Incorporation (I.R.S. Employer
or Organization) Identification Number)
1983 MARCUS AVENUE
LAKE SUCCESS, NEW YORK 11042
(Address of principal executive offices) (Zip code)
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If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A(c)(1) please check the
following box./ /
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A(c)(2) please check the following box. / /
Securities to be registered pursuant to Section 12(b) of the Act:
Name of Each Exchange
Title of Each Class on Which Each Class
to be so Registered is to be Registered
NONE NONE
Securities to be registered pursuant to Section 12(g) of the Act:
CLASS A COMMON STOCK, $0.01 PAR VALUE
(Title of class)
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Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
GENERAL
Staff Builders, Inc. (the "Corporation") is authorized to issue
50,000,000 shares of Class A Common Stock, par value $.01 per share, 1,450,000
shares of Class B Common Stock, par value $.01 per share, and 10,000 shares of
preferred stock, par value $1.00 per share. The shares of Class A Common Stock,
Class B Common Stock and preferred stock presently outstanding are validly
issued, fully paid and nonassessable.
COMMON STOCK
The rights of the holders of the Class A Common Stock and the Class B
Common Stock (collectively, the "Common Stock") are identical except for voting,
alienability and conversion rights.
Holders of shares of the Class A Common Stock and the Class B Common
Stock vote as a single class on all matters submitted to a vote of the
Corporation's stockholders, with each share of Class A Common Stock entitled to
one vote and each share of Class B Common Stock entitled to ten votes, except
(i) with respect to certain amendments to the Corporation's Certificate of
Incorporation, and (ii) as otherwise provided by law.
The Corporation's Restated Certificate of Incorporation, as amended,
provides that the affirmative vote of the holders of at least 80% of the voting
power of the outstanding Common Stock (each share of Common Stock being
entitled to one vote) and at least 66% of the outstanding shares of each series
of preferred stock (each series voting separately) is required to approve
certain mergers, asset sales, securities transactions, liquidations,
reclassifications and other similar transactions involving an "interested
stockholder" of the Corporation unless the business combination has received the
prior approval of a majority of the Corporation's "continuing directors." An
"interested stockholder" is a stockholder who beneficially owns more than 10% of
the Corporation's outstanding voting power, or who is an affiliate of the
Corporation who owned more than 10% of the Corporation's outstanding voting
power at any time within the prior two-year period, or who acquired shares of
the Corporation's voting stock from another interested stockholder at any time
within the prior two-year period in a transaction not involving a public
offering. A "continuing director" is generally any director of the Corporation
who is unaffiliated with the interested stockholder and who was a member of the
Corporation's Board of Directors prior to the interested stockholder becoming an
interested stockholder. The existence of this provision (the "Interested
Stockholder Provision") could have the effect of delaying, deferring or
preventing a change in control of the Corporation.
The Corporation's Board of Directors is divided into three classes.
One class is elected each year by a majority of the votes cast by holders of the
Common Stock at the Corporation's annual meeting to hold office for a three-year
term and until their successors
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are elected and qualified. Holders of shares of the Common Stock do not have
cumulative voting rights with respect to the election of directors.
Under the Corporation's Restated Certificate of Incorporation, as
amended, the affirmative vote of the holders of at least 80% of the voting power
of the outstanding Common Stock is required to remove any director from office
(which may be done only for cause). In addition, the affirmative vote of the
holders of at least 80% of the voting power of the outstanding Common Stock
(each share of Common Stock being entitled to one vote) is required to amend,
repeal or adopt any provision inconsistent with the Interested Stockholder
Provision or those provisions of the Corporation's Restated Certificate of
Incorporation providing for a classified board of directors and regulating the
removal of directors.
Under both the Corporation's Restated Certificate of Incorporation, as
amended, and the Delaware General Corporation Law, the affirmative vote of the
holders of a majority of the outstanding shares of the Class A Common Stock and
the Class B Common Stock, voting separately, is required to approve any
amendment to the Corporation's Restated Certificate of Incorporation that would
increase or decrease the aggregate number of authorized shares of either class,
increase or decrease the par value of the shares of either class, or modify or
change the powers, preferences or special rights of the shares of either class
so as to affect either class adversely.
Shares of the Class A Common Stock are transferable and do not enjoy
conversion rights. Shares of the Class B Common Stock are generally not
transferable, as such, except in the following situations (collectively, the
"Exempt Transfers"): (i) by gift, (ii) by devise, bequest or otherwise through
the laws of inheritance or descent, (iii) as a result of the substitution of a
trustee, guardian, committee of an incompetent, conservator or custodian,
(iv) as a result of certain changes in the beneficiaries of a trust or a
distribution from a trust to its beneficiaries, in each case under the terms of
the trust, and (v) in such other circumstances as may clearly demonstrate that
no material change in beneficial ownership has occurred. Each share of the
Class B Common Stock is convertible at any time, at the option of its holder
(and will convert automatically upon any attempted transfer that is not an
Exempt Transfer), into one share of Class A Common Stock.
The holders of shares of Common Stock are entitled to receive
dividends when, as and if declared by the Corporation's Board of Directors out
of funds legally available therefor. In the event of the liquidation,
dissolution or winding up of the Corporation, the holders of shares of Common
Stock are entitled to share ratably in all assets remaining available for
distribution to them after payment of liabilities and after provision has been
made for each class of stock, if any, having preference over the Common Stock.
Holders of shares of Common Stock, as such, have no preemptive or other
subscription rights and there are no sinking fund or redemption provisions
applicable to the Common Stock.
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PREFERRED STOCK
The Corporation is authorized to issue 10,000 shares of preferred
stock, $1.00 par value per share, with such designation, rights and preferences
as may be determined from time to time by the Board of Directors. Accordingly,
the Board of Directors is empowered, without stockholder approval, to issue
preferred stock with dividend, liquidation, conversion, voting or other rights
which could adversely affect the voting power or other rights of the holders of
the Corporation's Common Stock. In the event of issuance, the preferred stock
could be utilized, under certain circumstances, as a method of discouraging,
delaying or preventing a change in control of the Corporation. Currently, 666-
2/3 shares of Class A Preferred Stock are outstanding.
The holders of the Class A Preferred Stock do not have any voting
rights except on matters concerning the substantive rights, privileges and
preferences of the Class A Preferred Stock and on votes relating to the
Interested Stockholder Provision. Holders of record of shares of the Class A
Preferred Stock are entitled to receive non-cumulative dividends at a rate of
$1.00 per share per annum when and as declared by the Board of Directors before
any dividends are paid on shares of the Common Stock. In the event of the
liquidation, dissolution or winding up of the Corporation, holders of the
Class A Preferred Stock are entitled to receive $1.00 per share before any
payment or distribution may be made on the Common Stock. Holders of shares of
the Class A Preferred Stock, as such, have no preemptive or other subscription
rights and there are no sinking fund or redemption provisions applicable to the
Class A Preferred Stock.
ITEM 2. EXHIBITS.
EXHIBITS INCORPORATED BY EXHIBIT
REFERENCE TO NUMBER
1. Form of Specimen Certificate of the
Class A Common Stock.
2.1 Restated Certificate of Incorporation of
the Corporation, filed with the Delaware
Secretary of State on July 11, 1988.
2.2 Certificate of Amendment to the Restated
Certificate of Incorporation of the
Corporation, filed with the Delaware
Secretary of State on August 22, 1991.
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2.3 Certificate of Amendment to the Restated
Certificate of Incorporation of the
Corporation, filed with the Delaware
Secretary of State on September 3, 1992.
2.4 Certificate of Retirement of Stock of
the Corporation, filed with the Delaware
Secretary of State on February 28, 1994.
2.5 Certificate of Retirement of Stock of
the Corporation, filed with the Delaware
Secretary of State on June 3, 1994.
2.6 Certificate of Designation, Rights and
Preferences of the Class A Preferred
Stock of the Corporation, filed with the
Delaware Secretary of State on June 6,
1994.
2.7 Certificate of Amendment to the Restated
Certificate of Incorporation of the
Corporation, filed with the Delaware
Secretary of State on August 23, 1994.
2.8 Form of Certificate of Amendment to the
Restated Certificate of Incorporation of
the Corporation to be filed with the
Delaware Secretary of State.
2.9 Amended and Restated By-Laws of the
Corporation. * 3.8
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* Corporation's Annual Report on Form 10-K filed by the Corporation with the
Securities and Exchange Commission on May 6, 1995.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
STAFF BUILDERS, INC.
Date: October 23, 1995 By: /s/ Stephen Savitsky
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Stephen Savitsky
Chief Executive Officer and President
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INDEX TO EXHIBITS
EXHIBITS INCORPORATED BY EXHIBIT
REFERENCE TO NUMBER
1. Form of Specimen Certificate of the
Class A Common Stock.
2.1 Restated Certificate of Incorporation of
the Corporation, filed with the Delaware
Secretary of State on July 11, 1988.
2.2 Certificate of Amendment to the Restated
Certificate of Incorporation of the
Corporation, filed with the Delaware
Secretary of State on August 22, 1991.
2.3 Certificate of Amendment to the Restated
Certificate of Incorporation of the
Corporation, filed with the Delaware
Secretary of State on September 3, 1992.
2.4 Certificate of Retirement of Stock of
the Corporation, filed with the Delaware
Secretary of State on February 28, 1994.
2.5 Certificate of Retirement of Stock of
the Corporation, filed with the Delaware
Secretary of State on June 3, 1994.
2.6 Certificate of Designation, Rights and
Preferences of the Class A Preferred
Stock of the Corporation, filed June 6,
1994.
2.7 Certificate of Amendment to the Restated
Certificate of Incorporation of the
Corporation, filed with the Delaware
Secretary of State on August 23, 1994.
2.8 Form of Certificate of Amendment to the
Restated Certificate of Incorporation of
the Corporation to be filed with the
Delaware Secretary of State.
2.9 Amended and Restated By-Laws of the
Corporation. * 3.8
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* Corporation's Annual Report on Form 10-K filed by the Corporation with the
Securities and Exchange Commission on May 6, 1995.
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FRONT OF FORM OF STOCK CERTIFICATE
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER NOTED ON THE REVERSE SIDE HEREOF.
LOGO
STAFF BUILDERS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
NUMBER SHARES
CLASS A COMMON STOCK --- SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP
THIS CERTIFIES THAT _________________ is the owner of ___________ FULLY PAID AND
NON-ASSESSABLE SHARES, $.01 PAR VALUE, OF THE CLASS B COMMON STOCK OF STAFF
BUILDERS, INC. transferable on the books of the Corporation by the holder
hereof in person or by duly authorized attorney upon surrender of this
certificate properly endorsed. This Certificate and the shares represented
hereby are issued and shall be subject to all of the provisions of the
Certificate of Incorporation, as amended, of the Corporation (a copy of which
is on file at the office of the Corporation) to all of which the holder of this
certificate, by acceptance hereof assents. This Certificate is not valid until
countersigned and registered by the Transfer Agent and Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized officers.
Dated:
SEAL
/s/ David Savitsky /s/ Stephen Savitsky
Secretary President
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BACK OF FORM OF STOCK CERTIFICATE
THE TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS PROHIBITED BY
THE TERMS OF THE RESTATED CERTIFICATE OF INCORPORATION OF STAFF BUILDERS, INC.
(THE "CORPORATION"), AS AMENDED (THE "RESTATED CERTIFICATE"), UNLESS SUCH
TRANSFER IS AN "EXEMPT TRANSFER" AS DEFINED THEREIN. PURSUANT TO THE TERMS OF
THE RESTATED CERTIFICATE, ANY ATTEMPTED TRANSFER OF THE SHARES REPRESENTED BY
THIS CERTIFICATE THAT IS NOT AN EXEMPT TRANSFER SHALL BE TREATED AS AN
IRREVOCABLE ELECTION TO CONVERT SUCH SHARES TO SHARES OF CLASS A COMMON STOCK
OF THE CORPORATION. COPIES OF THE RESTATED CERTIFICATE MAY BE OBTAINED, WITHOUT
CHARGE, BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO
THE SECRETARY OF THE CORPORATION.
A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OF THE CORPORATION OR
SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS WILL BE FURNISHED BY THE CORPORATION, WITHOUT CHARGE,
TO EACH STOCKHOLDER WHO SO REQUESTS, UPON APPLICATION TO THE TRANSFER AGENT OR
TO THE SECRETARY OF THE CORPORATION.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN. ACT-- _______ Custodian
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of Under Uniform Gifts to Minors Act
survivorship and not as tenants in common _________________________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _____ hereby sell, assign and transfer unto _________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
Shares of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint __________ Attorney to transfer the said
stock on the books of the within named Corporation with full power of
substitution in the premises.
Dated _____________________________
NOTICE: The Signature To This Assignment Must Correspond With The Name As
Written Upon The Face Of The Certificate In Every Particular Without Alteration
Or Enlargement Or Any Change Whatever
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Restated Certificate of Incorporation
of
STAFF BUILDERS, INC.
STAFF BUILDERS, INC., a corporation organized and existing under the laws
of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is STAFF BUILDERS, INC. (the
"Corporation"), and the name under which the Corporation was originally
incorporated is Tender Loving Care Health Care Services, Inc.
The date of filing its original Certificate of Incorporation with the
Secretary of State was May 3, 1983.
2. This Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Certificate of
Incorporation of this Corporation as heretofore amended or supplemented and
there is no discrepancy between those provisions and the provisions of this
Restated Certificate of Incorporation.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is hereby restated without further amendments or changes
to read as herein set forth in full:
FIRST: The name of the corporation is:
STAFF BUILDERS, INC.
SECOND: The registered office of the Corporation is located at c/o United
Corporate Services, Inc., 410 South State Street, in the City of Dover, County
of Kent, State
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of Delaware 19901. The name of its registered agent at that address is United
Corporate Services, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware.
FOURTH: The Corporation shall be authorized to issue the following shares:
Number
Class of Shares Par Value
----- --------- ---------
PREFERRED 10,000 $1.00
COMMON 15,000,000 $ .01
The designations and the powers, preferences and rights, and the
qualifications or restrictions thereof are as follows:
(a) Except as otherwise required by statute or provided for by
resolution or resolutions of the Board of Directors, as hereinafter set
forth, the holders of common shares of the Corporation shall possess the
exclusive right to vote for the elections of directors and for all other
corporate purposes.
(b) A holder of the common stock shall, except as otherwise provided
in paragraphs (c), (f) or (g) hereof, be entitled to one (1) vote on each
matter submitted to a vote at a meeting of stockholders for each share of
the common stock held of record by such holder as of the record date for
such meeting.
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(c) A holder of the 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 the common stock held of record by such holder as of the record
date for such meeting which meets one or both of the following criteria:
1. Such share of common stock has had the same
beneficial owner or owners since May 15, 1986; or
2. Such share of the common stock 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 for
such meeting; subject, in the case of holders referred to in
paragraph (a) hereof, to the requirements set forth in such
paragraph.
(d) For purposes of this Article FOURTH, no change in beneficial
ownership shall be deemed to have occurred with respect to any share of
common stock upon the occurrence of any of the following events (each such
event being hereinafter referred to as an "Exempt Transfer"):
Upon 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. Upon 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. Upon 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. Upon 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 such procedures
as shall be established by the Corporation as provided in paragraph (h)
hereof, 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.
(e) Any share of the common stock held of record on any record date
for determining the holders entitled to vote on any matter submitted to a
vote by the stockholders (a "Record Date") shall be presumed to be owned
beneficially by the recordholder and for the period shown by the
stockholder records of the Corporation. Notwithstanding the preceding
sentence of this paragraph (e), any share of the common stock held of
record on a Record Date in "street" or "nominee" name or by a broker,
clearing agency, voting trustee,
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bank, trust company or other nominee shall be presumed to have been
acquired by the beneficial owner subsequent to May 15, 1986 and to have
been the same beneficial owner for a period of less than 48 consecutive
calendar months prior to the Record Date. These presumptions shall be
rebuttable by presentation to the Corporation, in accordance with such
procedures as shall be established by the Corporation as provided in
paragraph (h) hereof, of satisfactory evidence.
(f) Any share of the common stock acquired by the beneficial owner as
a direct result of:
1. A stock split, stock dividend, reclassification or
other distribution of shares by the Corporation with respect
to existing shares ("dividend shares") will be deemed to
have been acquired and held continuously by such holder from
the date on which the original shares, with respect to which
the dividend shares were issued, were acquired; or
2. The conversion of convertible securities of the
Corporation, will be deemed to have been acquired and held
continuously by such holder from the date on which the
convertible securities, with respect to which the shares of
common stock were issued, were acquired.
(g) A holder of any share of the common stock acquired pursuant to
the terms of any plans of the Corporation as specified below, whether
issued before or after May 14, 1986, shall be entitled to ten (10) votes on
each matter
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submitted to a vote at a meeting of stockholders, provided such holder
meets one of the following requirements:
1. Such holder is an employee who holds such share of
the common stock beneficially by reason of participation in
any tax-qualified savings, thrift, stock bonus, employee
stock ownership, pension or other similar individual account
employee benefit plan or arrangement adopted by the
Corporation or such holder is a trustee under such plan;
2. Such holder is an employee or former employee or a
beneficiary of either of them who holds such shares of the
common stock beneficially by reason of a distribution from
any plan referred to in paragraph (g)1 hereof;
3. Such holder is an employee who holds such share of
the common stock beneficially pursuant to an option or right
granted to such employee prior to May 15, 1986; or
4. Such holder has acquired and beneficially owns such
share of the common stock by reason of participation in a
dividend reinvestment plan approved by the Corporation and
was the holder of the share of common stock on which the
dividend was paid pursuant to the dividend reinvestment plan
prior to May 15, 1986.
(h) 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. Written procedures designed to facilitate such determinations
shall
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be established by the Board of Directors from time to time. Such
procedures shall provide, among other things, the manner of proof of facts
that will be accepted and the frequency with which such proof may be
required to be renewed. The Board of Directors and any transfer agent
shall be entitled to rely on information concerning beneficial ownership of
the 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 common stock. The
powers conferred upon the Board of Directors by this paragraph (h) are
granted solely to enable the Board of Directors to adopt procedures for the
purpose of making determinations of beneficial ownership under this Article
FOURTH.
(i) 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.
(j) Notwithstanding paragraphs (c), (f) and (g) hereof, for purposes
of any vote on a proposal submitted to stockholders solely under Article
EIGHTH of the Charter and for purposes of any vote on a proposal to amend,
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alter or repeal such Article EIGHTH or Section (a) or (d) of Article FIFTH,
a holder of common stock shall be entitled to one (1) vote for each share
of the common stock held of record by such holder as of the Record Date for
determining stockholders entitled to vote on such proposal.
(k) The preferred shares of the Corporation shall be issued in whole
or in part, in series or otherwise, and the designations, powers,
preferences, qualifications, limitations or restrictions thereof, of the
various classes or series including such provisions as may be desired for
the redemption of shares of stock and/or the conversion of shares of stock
into or exchanged for shares of any other series or class of stock, and the
time or times, price or prices, rates of exchange, adjustments, and other
conditions of such redemption, conversion and/or exchange, shall be
designated from to time by resolution or resolutions duly adopted by the
Board of Directors. The series of Preferred Stock of the Corporation which
have been established by resolutions of the Board of Directors are as
follows:
1. RESOLVED that there is established a series of
Preferred Stock of the Corporation (the "Preferred Stock"),
designated $1.00 Preferred Stock, Class A (the "Class A
Stock"). This series shall consist of 1,000 shares, and the
voting powers, preference, redemption, conversion and other
special rights, and the qualifications, limitations and
restrictions thereof, are as follows:
a. The Preferred Stock of this series shall be
designated "$1.00 Preferred Stock, Class A".
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b. The shareholders to whom the Class A Stock is
initially issued, are as follows:
Name # of Shares
---- -----------
Stephen Savitsky 333 1/3
Ephraim Koschitski 333 1/3
David Savitsky 333 1/3
c. The preferential dividend rate shall be $1.00
per share per annum non-cumulative; holders of record
of shares of the Class A Stock shall be entitled to
receive dividends, when and as declared by the Board of
Directors out of funds legally available therefor,
before any dividends are paid on shares of Common Stock
of the Corporation ("Common Stock") or shares of any
other class of stock of the Corporation ranking junior
to the Class A Stock in respect of dividends.
d. The shares of Class A Stock shall be fully
paid and nonassessable.
e. The preferential amount which holders of the
Class A Stock shall be entitled to receive from the
assets of the Corporation in the event of any voluntary
or involuntary liquidation, dissolution or winding up
of the Corporation is $1.00 per share. In the event of
liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the
holders of the Class A Stock shall be entitled to
receive the amounts aforesaid before any payment or
distribution shall be made on or in respect of shares
of Common Stock or shares of any other class of stock
of the Corporation ranking junior to the Class A Stock
in
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respect of assets. For purposes of this certificate, a
merger of the Corporation or the sale of all or
substantially all of its assets shall not be deemed to
be a liquidation, dissolution, or winding up of the
Corporation.
Each share of the Corporation's Convertible
Preferred Stock will be convertible at the option of
the holder thereof into 140 shares of Common Stock of
the Company subject to adjustment in the event of any
stock splits, or other similar events upon the
achievement of certain events as specified below:
(1) If the Corporation's income after provision
for income taxes and exclusive of extraordinary
earnings (but without giving effect to any charge to
income which may be recorded on the Corporation's
Financial Statements as a result of the conversion of
such Preferred Stock or the exercise of any options or
warrants), as audited and determined by the
Corporation's independent public accountants
(hereinafter the "Minimum After Tax Income") exceeds
seventy-seven cents ($.77) per share of Common Stock
(calculated on a fully diluted basis and including
issuance of shares pursuant to stock options and
conversion of the Preferred Stock and subject to
adjustment in the event of any stock splits, reverse
stock splits, or other similar events) for the fiscal
year which ends November 30, 1984 or 1985;
(2) If the Corporation's Minimum After Tax Income
exceeds one dollar and forty-six cents ($1.46) per
share of Common Stock (calculated on a fully
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diluted basis and including issuance of shares pursuant
to stock options and conversion of the Preferred Stock,
and subject to adjustment in the event of any stock
splits, reverse stock splits or other similar event)
for the fiscal year which ends November 30, 1986; or
(3) If at some time during the period ending
November 30, 1986, the average closing bid price of the
Corporation's Common Stock in the over-the-counter
market as reported by the National Association of
Securities Dealers Automated Quotation System (NASDAQ)
or the average closing bid price on any National
Securities stock exchange (if the Corporation's stock
is listed therein) (i.e. the "Bid Price"), exceed
thirty dollars ($30.00) per share (subject to
adjustment in the event of any reverse stock splits,
stock splits, or other similar events) for any one
hundred and thirty-two (132) consecutive days on which
the New York Stock Exchange is open for business.
g. The Corporation shall at all times reserve
and keep available out of its authorized and unissued
Common Stock, solely for the purpose of effecting the
conversion of Class A Stock, such number of shares as
shall from time to time be sufficient to effect the
conversion of all shares of Class A Stock from time to
time outstanding. The Corporation shall from time to
time, in accordance with the laws of Delaware, increase
the authorized amount of Common Stock if at any time
the number of shares of Common Stock remaining unissued
shall not be sufficient to permit the conversion of all
the then outstanding Class A Stock.
-11-
<PAGE>
h. Except to the extent that the anti-dilution
provision set forth below dictates a different result,
the total number of shares of Common Stock which can be
obtained by converting all 1,000 shares of Class A
Stock shall not exceed 140,000 shares of Common Stock.
No fractions of shares of Common Stock are to be
issued upon conversion but in lieu thereof, the
Corporation will pay therefor in cash, an amount equal
to such fractional share, times the average closing Bid
Price of the Corporation's Common Stock on the business
day next preceding the day of conversion.
i. The number of shares of Common Stock
obtainable by conversion of Class A Stock shall not be
diluted by changing in any manner the number and/or
character of shares of Common Stock outstanding by any
type of reorganization (including without limitation a
merger with or into any other corporation or a
consolidation), recapitalization, reclassification,
combination of shares, stock splits and/or stock
dividend (hereinafter "Corporate Changes"). The number
of shares of Common Stock obtained by conversion of
Class A Stock shall be adjusted as appropriate to
account for and to the benefit of the converting
shareholder by such Corporate Changes in the same
manner as if the subject conversion rights had been
exercisable and exercised immediately prior to such
Corporate Changes; in any case, appropriate adjustment
(as determined by the Board of Directors) shall be made
in the application of the provisions herein set forth
in respect to rights and interest
-12-
<PAGE>
thereafter the holders of the Class A Stock to the end
that the provisions set forth herein (including the
specified changes in and other adjustments of the
conversion rights) shall thereafter be applicable as
reasonably may be possible, in relation to any share of
stock or cash or other securities or other property
thereafter deliverable upon conversion of the Class A
Stock.
j. Before any holder of Class A Stock shall be
entitled to convert the same into Common Stock, he
shall surrender the certificate or certificates for
such Class A Stock at the office, appointed as
aforesaid, which certificate or certificates, if the
Corporation shall so request, shall be duly endorsed to
the Corporation or in blank, or accompanied by proper
instruments of transfer to the Corporation or in blank,
and shall give written notice to the Corporation that
he elects to convert such Class A Stock, and shall
state in writing therein the name or names in which he
wishes the certificate or certificates for Common Stock
to be issued.
The Corporation will, as soon as practicable after
such surrender of certificates for Class A Stock
accompanied by the written notice and the statement
above prescribed, issue and deliver at the office
appointed as aforesaid, to the person for whose account
such Class A Stock was so surrendered, or his nominee
or his nominees, certificates for the number of full
shares of Common Stock to which he shall be entitled as
aforesaid, together with a cash adjustment in respect
of any fraction of a share as hereinbefore stated, if
not evenly convertible. Such conversion
-13-
<PAGE>
shall be deemed to have been made as of the date of
such surrender of the Class A Stock to be converted.
k. The Class A Stock shall be redeemable, in
whole or in part, at the option of the Corporation, at
any time after March 31, 1987, or from time to time
thereafter, at redemption price of $1.00 per share.
Notice of any proposed redemption of shares of
Class A Stock shall be given by mailing a copy of such
notice, postage prepaid, to the holders of record of
the shares of Class A Stock to be redeemed, at their
respective addresses then appearing on the books of the
Corporation, not less than 30 nor more than 90 days
prior to the date designated from such redemption.
From and after the date so fixed for redemption, if
such notice shall have been given and all funds
necessary for such redemption shall have been set aside
as aforesaid, all rights of the holders of the shares
so called for redemption as stockholders of the
Corporation, except only the right to receive when due,
but without interest, the redemption funds to which
they are entitled.
Shares of Class A Stock redeemed or acquired by
the Corporation shall upon the filing by the
Corporation of a certificate under Delaware law
reducing the capital of the Corporation in respect of
such shares, have the status of authorized but unissued
shares of Preferred Stock, and shares of Class A Stock
surrendered to the Corporation on the conversion or
exchange thereof into or for other shares of stock of
any class of the Corporation
-14-
<PAGE>
shall upon such conversion or exchange have the status
of authorized but unissued shares of Preferred Stock.
l. The holders of Class A Stock will not have any
voting rights except on matters concerning the
substantive rights, privileges and preferences of the
Class A Stock, and as otherwise provided (i) in Article
EIGHTH of the Corporation's Certificate of
Incorporation, or (ii) as provided in the Corporation's
by-laws.
m. The stated value of the Class A Stock shall be
$1.00 per share, and an amount equal to such stated
value shall, upon issuance of the Class A Stock, be
credited to the capital accounts of the Corporation.
n. No holders of preferred stock shall have any
preemptive rights or preferential rights for
subscription to any shares of any capital stock of the
Corporation except as herein provided.
2. RESOLVED that there is established a series of
Preferred Stock of the Corporation (the "Preferred Stock"),
designated $1.00 Preferred Stock, Class B (the "Class B
Stock"). This series shall consist of 1,000 shares, and the
voting powers, preference, redemption, conversion and other
special rights, and the qualifications, limitations and
restrictions thereof, are as follows:
a. Designation
-----------
The designation of the series of 1,000 shares of
Preferred Stock of Staff Builders, Inc. (the
"Corporation") created hereby is "$1.00 Preferred
Stock, Class B" (hereinafter "this Series").
-15-
<PAGE>
b. Dividends
---------
(1) The dividend rate on each share of this
Series shall be $400.00 per annum ("Dividend Rate").
Such dividends shall be payable quarterly on January
30, April 30, July 30 and November 30 of each year
(each such date is referred to herein as a "Dividend
Payment Date") commencing on the first such date (the
"first Dividend Payment Date"), which is at least 45
days after the date of the original issue, which shall
be on the date on which the Merger of Staff Builders,
Inc., a New York corporation ("Staff Builders") and TLC
Acquisition Corporation ("Acquisition") becomes
effective, as set forth in the Agreement and Plan of
Merger dated as of September 22, 1986, as amended,
among Staff Builders, Acquisition and the Corporation
(the "Merger Agreement"). The quarterly dividend
period ending on a Dividend Payment Date is referred to
herein as a "Dividend Period".
(2) The holders of this Series shall be entitled
to receive, when and as declared by the Board of
Directors, out of the assets of the Corporation legally
available therefor, cumulative dividends on each
Dividend Payment Date at the Dividend Rate set forth
above. Such dividends shall be cumulative from and
after the date of original issue of shares of this
Series, whether or not on any Dividend Payment Date
there shall be funds legally available for the payment
of dividends.
(3) Except as provided herein, no dividends shall
be declared or paid or set
-16-
<PAGE>
aside for payment on the Preferred Stock of any series
ranking, as to dividends, on a parity with or junior to
this Series for any period unless full cumulative
dividends have been or contemporaneously are declared
and paid or declared and a sum sufficient for the
payment thereof has been set aside for such payment on
this Series for all Dividend Periods ending on or prior
to the date of payment of such dividend. When
dividends are not paid in full upon the shares of this
Series and any other Preferred Stock ranking on a
parity as to dividends with this Series, all dividends
declared upon shares of this Series and any other
Preferred Stock ranking on a parity as to dividends
with this Series shall be declared pro rata so that the
amount of dividends declared per share on this Series
and such other Preferred Stock shall in all cases bear
to each other the same ratio that accrued dividends per
share on the shares of this Series and such other
preferred stock bear to each other.
(4) So long as any shares of this Series are
outstanding, no dividends (other than a dividend in
Common Stock or in any other class of stock ranking
junior to this Series as to dividends and upon
liquidation) shall be declared or paid or set aside for
payment, and no other distribution shall be declared or
made, upon the Common Stock or upon any other class of
stock ranking junior to this Series as to dividends or
upon liquidation, nor shall any Common Stock nor any
other class of stock of the Corporation ranking junior
to or on a parity with this Series as to dividends or
upon liquidation be redeemed, purchased or otherwise
acquired for any consideration by the Corporation
-17-
<PAGE>
(except by conversion into or exchange for stock of the
Corporation ranking junior to this Series as to
dividends and upon liquidation and except that the
foregoing shall not prevent the purchase of shares of
Preferred Stock ranking on a parity with this Series as
to dividends and upon liquidation pursuant to a
purchase or exchange offer made on the same terms to
those holders of all the outstanding Preferred Stock so
ranking on a parity with this Series as to dividends
and upon liquidation) unless, in each case, the full
cumulative dividends on this Series (i) shall have been
paid or (ii) contemporaneously are declared and paid or
(iii) are declared and a sum sufficient for the payment
thereof has been set aside for such payment, for all
Dividend Periods through the date of such proposed
dividend, distribution, redemption, purchase or
acquisition.
(5) The amount of dividends "accrued" on any share
of this Series at the first Dividend Payment Date shall
be deemed to be, whether or not earned or declared, an
amount calculated on the basis of the annual dividend
of $400.00 for the period after the date of original
issue of shares of this Series to and including the
first Dividend Payment Date based on a 360-day year of
twelve 30-day months. The amount of any dividends
"accrued" on any share of this Series at any Dividend
Payment Date other than the first Dividend Payment Date
shall be deemed to be the amount of any unpaid
dividends accumulated thereon to and including such
Dividend Payment Date, whether or not earned or
declared, and the amount of dividends "accrued" on any
share of this
-18-
<PAGE>
Series at any date other than a Dividend Payment Date
shall be calculated as the amount of any unpaid
dividends accumulated thereon to and including the last
preceding Dividend Payment Date, whether or not earned
or declared, plus an amount calculated on the basis of
the annual dividend rate of $400.00 for the period
after such last preceding Dividend Payment Date to and
including the date as of which the calculation is made,
based on a 360-day year of twelve 30-day months.
c. Redemption
----------
(1) (A) Shares of this Series may be redeemed by
the Corporation, in whole or in part, at the option of
the Corporation by resolution of the Board of
Directors, at any time commencing on the first day
after the Effective Time (as defined in the Merger
Agreement) at the redemption prices set forth below
("Redemption Prices") plus accrued and unpaid
dividends, if any, to the date fixed for redemption
(the "Redemption Date"):
Number of Months
Following Effective Redemption
Time in Which Redemption Price Per
Date Occurs Share
------------------------ ----------
Effective Time - 10 $5,400
11-21 $5,350
22-32 $5,300
33-43 $5,250
44-54 $5,200
55-65 $5,150
-19-
<PAGE>
Number of Months
Following Effective Redemption
Time in Which Redemption Price Per
Date Occurs Share
------------------------ ----------
66-76 $5,100
77-84 $5,050
85 and thereafter $5,000
Notwithstanding the foregoing, during the sixty
months immediately after the Effective Time the
Corporation may not redeem in excess of an aggregate of
9850 share of this Series.
(B) To the extent that less than all the
outstanding shares of this Series are to be redeemed,
the number of shares to be redeemed shall be determined
by the Board of Directors of the Corporation and the
shares to be redeemed shall be determined by lot or pro
rata as may be determined by the Board of Directors of
the Corporation to conform to any rule or regulation of
any stock exchange upon which the shares of this Series
may at the time be listed.
(C) Notice of any redemption of shares of
this Series, specifying the Redemption Date and place
of redemption (the "Redemption Notice"), shall be
mailed to each holder of record of the shares to be
redeemed, at his address of record, not more than 60
nor less than 20 days prior to the Redemption Date; if
less than all the shares owned by such stockholder are
then to be redeemed, the notice shall also specify the
number of shares thereof which are to be redeemed and
the numbers of the certificates representing such
shares.
-20-
<PAGE>
(D) Unless the Corporation shall fail to
validly authorize, execute and deliver the Redemption
Notice and pay in full the Redemption Price and any
accrued and unpaid dividends, dividends on the shares
called for redemption shall cease to accrue on the
Redemption Date, and all rights of the holders of such
shares as stockholders of the Corporation by reason of
ownership of such shares shall cease on the Redemption
Date, except the right to receive the amount payable
upon redemption of such shares, on presentation and
surrender of the respective certificates representing
such shares, and such shares shall not after the
Redemption Date be deemed to be outstanding. In case
less than all the shares represented by any such
certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost
to the holder thereof.
(E) At its option, the Corporation may, on
or prior to the Redemption Date, deposit the aggregate
amount payable upon redemption of the shares to be
redeemed with a bank or trust company having a combined
capital and surplus (as shown by its latest published
statement) of at least $50,000,000 (hereinafter
referred to as the "Depositary") designated by the
Board of Directors of the Corporation, to be held in
trust by the Depositary for payment to the holders of
the shares then to be redeemed. If such deposit is
made and the funds so deposited are made immediately
available to the holders of the shares to be redeemed,
the Corporation shall thereupon be released and
discharged (subject to the provisions of paragraph 1(F)
of this
-21-
<PAGE>
Section c from any obligation to make payment of the
amount payable upon redemption of the shares to be
redeemed, and the holders of such shares shall look
only to the Depositary for such payment.
(F) Any funds deposited with the Depositary
as aforesaid with respect to shares of this Series
which remain unclaimed at the end of four years from
and after the Redemption Date in respect of which such
funds were deposited, shall be returned to the
Corporation forthwith; thereafter the holders of shares
of this Series redeemed on such Redemption Date shall
look only to the Corporation for the payment of the
Redemption Price thereof and any accrued and unpaid
dividends thereon. Any interest accrued on any funds
deposited with the Depositary shall belong to the
Corporation and shall be paid to it from time to time
on demand.
(G) Any shares of this Series which shall at
any time have been redeemed shall, after such
redemption, have the status of authorized but unissued
shares of Preferred Stock, without designation as to
series until such shares are once more designated as
part of a particular series by the Board of Directors.
(2) At any time after the eighth anniversary of
the Effective Time a holder of record of shares of this
Series may deliver written notice to the Corporation of
his desire to have the Corporation redeem all of or
part of his shares of this Series. Within 10 days of
its receipt of such notice of redemption, the
Corporation shall mail to the holder who has demanded
-22-
<PAGE>
redemption of his shares at his address of record, a
notice ("Corporation Redemption Notice") specifying the
time of redemption ("Shareholder Redemption Date"),
which shall be not more than 60 nor less than 20 days
after the date of the Corporation Redemption Notice,
and place of redemption. On the Shareholder Redemption
Date each share of this Series held by the holder with
respect to which a redemption request has been made
shall be redeemed at a redemption price of $5,000.00
per share, plus accrued and unpaid dividends, if any,
through the Shareholder Redemption Date. The
provisions of paragraphs c(1)(D), (E), (F) and (G)
shall be applicable to shares redeemed at the option of
a holder of this Series; provided, however, that for
purposes of this Paragraph c(2) references to
"Redemption Date" and "Redemption Notice" in such
paragraphs shall be deemed to be "Shareholder
Redemption Date" and "Corporate Redemption",
respectively, and the "Redemption Price" shall be
deemed to be $5,000.
d. Voting
------
(1) The holders of shares of this Series shall be
entitled, at all meetings of the stockholders of the
Corporation and on all occasions where stockholders are
entitled to vote, to one vote for each share of this
Series standing in their names. The holders of shares
of this Series shall vote with holders of shares of
Common Stock as a single class, except to the extent
that holders of shares of Common Stock or holders of
shares of this Series shall be entitled to vote as a
separate class pursuant
-23-
<PAGE>
to Delaware Law or the Corporation's Certificate of
Incorporation.
(2) If the Board of Directors of the Corporation
does not declare and the Corporation does not pay or
set aside for payment accrued dividends on two
consecutive Dividend Payment Dates, the holders of
shares of this Series, by affirmative vote of holders
of a majority of all outstanding shares of this Series
at such time, may appoint twenty-five percent (25%) of
the members of the Board of Directors of the
Corporation until such time as all such accrued and
unpaid dividends and any other accrued and unpaid
dividends have been paid in full. If the number which
equals 25% of the members of the Board of Directors
does not constitute a whole number, then the holders of
shares of this Series shall be entitled to appoint the
number of directors which is equal to the next
immediately succeeding whole number. If the holders of
shares of this Series are entitled to appoint members
of the Board of Directors of the Corporation hereunder,
the Board of Directors of the Corporation shall take
and cause to be taken all necessary corporate action in
accordance with applicable law and the Corporation's
Certificate of Incorporation and By-laws to amend the
By-laws of the Corporation and otherwise to enable the
nominee(s) of the holders of shares of this Series to
serve as a director(s) of the Corporation. Upon
payment by the Corporation to the holders of this
Series all accrued and unpaid dividends the director(s)
serving as the nominee(s) of the holders of shares of
this Series shall, if requested by the Corporation,
promptly submit his or their
-24-
<PAGE>
resignation as a director of the Corporation to the
Board of Directors of the Corporation.
e. Conversion
----------
(1) Each share of this Series shall, except as
otherwise provided herein, be converted at any time
after the first anniversary of the Effective Time and
from time to time thereafter at the option of the
holder thereof, into 595.2381 shares of fully paid and
nonassessable Common Stock, par value $.01 per share,
of the Corporation upon surrender to the Corporation
for such purpose of the certificate representing said
share; provided, however, the Corporation shall be
entitled to take any reasonable action its Board of
Directors deems appropriate to eliminate the issuance
of fractional shares upon conversion of the shares of
this Series. The Corporation will make no payment or
adjustment of dividends whether or not declared upon
the exercise of the conversion privilege.
(2) In the case of the call for redemption of any
shares of this Series pursuant to Section c, the right
of conversion of the shares designated for redemption
shall cease and terminate at the close of business on
the fifth day prior to the Redemption Date or
Shareholder Redemption Date, as the case may be, unless
default shall be made in the payment of the Redemption
Price and any accrued and unpaid dividends.
(3) In case the Corporation shall at any time or
from time to time subdivide the outstanding shares of
Common Stock
-25-
<PAGE>
into a greater number of shares, then with respect to
each such subdivision the number of shares of Common
Stock deliverable upon conversion of each share of this
Series shall be increased in proportion to the increase
resulting from such subdivision in the number of
outstanding shares of Common Stock; and in case the
Corporation shall at any time or from time to time
combine the outstanding shares of Common Stock into a
smaller number of shares, then with respect to each
such combination the number of shares of Common Stock
deliverable upon the conversion of each share of this
Series shall be decreased in proportion to the decrease
resulting from such combination in the number of
outstanding shares of Common Stock.
(4) In case the Corporation shall at any time or
from time to time change the outstanding Common Stock
into the same or a different number of shares of any
other class or classes of stock, then a holder of this
Series shall upon conversion, be entitled to receive
the number of shares of stock of the Corporation which
such holder would have been entitled to receive if he
(i) had, prior to the first such change of the
outstanding Common Stock into the same or a different
number of shares of any other class or classes of
stock, converted a number of shares of this Series
equal to the number so to be converted by him, (ii) had
held the shares of stock which he would have so
received after such first change until the date of the
conversion of the shares so to be converted, and (iii)
had received and held the shares which he would have so
received pursuant to each such subsequent
-26-
<PAGE>
change occurring prior to the conversion of such shares
to be converted.
(5) In case the Corporation shall at any time or
from time to time declare, on or in respect of the
Common Stock, a dividend payable in stock or other
securities of the Corporation, then with respect to the
first such dividend a holder of this Series, upon
exercising the conversion privilege after the record
date fixed for determining the holders of stock to whom
such dividend is payable, shall be entitled to receive
the number of shares of stock or the amount of other
securities which he would have been entitled to receive
upon conversion prior to said date, and, on and after
the date fixed for the payment of such dividend, shall
also be entitled to receive the number of shares of
stock or the amount of securities which would have been
issuable in payment of such dividend on or in respect
of said shares of Common Stock if he had exercised his
conversion privilege prior to said record date and on
said record date had been the holder of said shares of
Common Stock; and with respect to each such dividend
declared subsequent to the first such dividend, the
number of shares of stock or the amount of securities
to which such holder of this Series shall be entitled,
shall be increased in a manner determined by the Board
of Directors to be similar, with respect to each such
dividend, to the manner of increase hereinabove set
forth with respect to such first dividend and said
determination shall be conclusive upon all holders of
this Series.
-27-
<PAGE>
(6) In case the Corporation shall offer to the
holders of Common Stock any rights to subscribe for
stock or for other securities of the Corporation, the
holders of this Series outstanding as of the date the
record is taken of the holders of Common Stock entitled
to receive such rights shall be entitled to subscribe
for and purchase at the same price at which such stock
or securities are offered to the holders of Common
Stock, and on the same terms, the number of shares of
such stock or the amount of such securities for which
they would have been entitled to subscribe if they had
been holders of record of the number of shares of
Common Stock into which their stock was convertible on
such record date.
(7) The Corporation may, not less than 30 nor
more than 60 days before the date on which any
voluntary liquidation, dissolution or winding up of the
Corporation, or any consolidation or merger of the
Corporation with or into any other corporation, is
expected to become effective, mail to each holder of
this Series, at his address as it appears on the books
of the Corporation, a notice stating that such
liquidation, dissolution, winding up, consolidation or
merger is expected to become effective on a date
specified in such notice and that if such liquidation,
dissolution, winding up, consolidation or merger shall
become effective on the date specified in such notice
or within 30 days after the date so specified, then no
shares of this Series shall be convertible after the
date of the mailing of such notice unless the same
shall have been surrendered for the purpose within 30
days after the date of mailing of such notice. If such
-28-
<PAGE>
liquidation, dissolution, winding up, consolidation or
merger shall become effective as provided in such
notice, all shares of this Series so surrendered shall,
for the purpose of such liquidation, dissolution,
winding up, consolidation or merger, be deemed to have
been converted into shares of stock of the Corporation
as herein provided; but if such liquidation,
dissolution, winding up, consolidation or merger shall
not become effective as provided in such notice then no
shares of the Series shall be affected by such notice
and all shares of such stock so surrendered shall be
returned to the holder thereof.
(8) Shares of this Series converted shall not be
reissued, and, from time to time, in the discretion of
the Board of Directors, the number of shares of such
stock which the Corporation is authorized to issue
shall, upon the filing and recording of such
certificate as may be in accordance with the laws of
the jurisdiction of incorporation of the Corporation,
be deemed to have been reduced accordingly.
(9) The Corporation shall at all times reserve
and keep available, out of its authorized but unissued
shares of Common Stock or out of shares of Common Stock
held in its treasury, the full number of shares of
Common Stock into which all shares of this Service from
time to time outstanding are convertible.
f. Liquidation Rights
------------------
(1) Upon the voluntary or involuntary
dissolution, liquidation or winding up of the
Corporation, the holders
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<PAGE>
of the shares of this Series shall be entitled to
receive out of the assets of the Corporation an amount
equal to $5,000.00 per share, plus a sum equal to all
dividends (whether or not earned or declared) on such
shares accrued and unpaid thereon, before any payment
or distribution shall be made on the Common Stock or on
any other class or series of stock ranking junior to
this Series upon liquidation.
(2) The sale, conveyance, exchange or transfer
(for cash, shares of stock, securities or other
consideration) of all or substantially all the property
and assets of the Corporation and the merger or
consolidation of the Corporation into or with any other
corporation or the merger or consolidation of any other
corporation into or with the Corporation shall not be
deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes of this
Section f.
(3) After payment in cash (in New York Clearing
House funds or its equivalent) to the holders of the
shares of this Series of the full preferential amounts
which shall have been fixed hereby for the shares of
this Series, the holders of shares of this Series as
such shall have no right or claim to any of the
remaining assets of the Corporation.
(4) In the event the assets of the Corporation
available for distribution to the holders of shares of
this Series upon dissolution, liquidation or winding up
of the Corporation, whether voluntary or involuntary,
shall be insufficient to pay in full all amounts to
which such holders are
-30-
<PAGE>
entitled pursuant to this Section f, no such
distribution shall be made on account of any shares of
any other class or series of capital stock of the
Corporation ranking on a parity with the shares of this
Series upon such dissolution, liquidation or winding up
unless proportionate distributive amounts shall be paid
on account of the shares of this Series, ratably, in
proportion to the full distributable amounts for which
holders of all such parity shares are respectively
entitled upon such dissolution, liquidation or winding
up.
g. Registration Under Securities Act
---------------------------------
(1) To the extent it is necessary under the
Securities Act of 1933, as amended (the "Act"), in
order to enable the holders of shares of this Series to
transfer their shares by means of a public offering,
upon written request by the holders of 51% or more of
the then issued and outstanding shares of this Series,
at any time after the Effective Time, the Corporation
will cause to be prepared and filed a registration
statement under the Act relating to such number of
shares of this Series as may be designated by the
holders demanding such registration, and will use its
best efforts to cause such registration statement to
become effective. The Corporation shall not be
required to file more than one such registration
statement pursuant to this paragraph g, except that no
registration statement shall be deemed to have been
filed if the same shall not have become effective for
any reason whatsoever or becomes effective but is
withdrawn or enjoined for any reason in all cases for
other than a reason
-31-
<PAGE>
attributable to the holders of the shares of this
Series or any of them. The Corporation shall use its
best efforts to keep such registration statement
effective until it is permitted to withdraw the same
pursuant to paragraph g(5) hereof.
(2) If, at any time, the Corporation shall
propose to file a registration statement (other than on
Form S-8 or Form S-4 or any successor form) with the
Securities and Exchange Commission (the "Commission"),
the Corporation shall give all the then holders of
shares of this Series at least 30 days' prior written
notice of the filing of the proposed registration
statement. If requested by holders of 51% or more of
the then issued and outstanding shares of this Series
in writing within 15 days after receipt of any such
notice, and if it is necessary under the Act in order
to enable such holders to transfer their shares by
means of a public offering, the Corporation shall
register the shares of the holders who shall have made
such request concurrently with the registration of such
other securities, all to the extent requisite to permit
the public offering or sale of such shares of this
Series through the facilities of the over-the-counter
or appropriate stock exchange market or an
underwriting. Such "piggyback" registrations shall not
be counted as part of the number of registrations the
holders of this Series are entitled to request under
paragraph g(1). The Corporation shall not be required
to allow the holders of this Series to participate in
more than two such registrations, except that no
registration statement shall be deemed to have been
filed if the same shall not have become effective for
any reason whatsoever or
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<PAGE>
becomes effective but is withdrawn or enjoined for any
reason in all cases for other than a reason
attributable to the holders of shares of this Series or
any of them. Notwithstanding the foregoing, if, in the
case of an underwritten offering by the Corporation,
the managing underwriter of such offering shall advise
the Corporation in writing that, in its opinion, the
distribution of the shares requested to be included in
the registration concurrently with the securities being
registered by the Corporation would materially
adversely affect the distribution of such securities by
the Corporation, then such shares need not be
registered by the Corporation and the request to have
such shares included in such registration statement
shall not be counted as part of the number of
registrations the holders of this Series are entitled
to under this paragraph g(2).
(3) Any registration statement filed pursuant to
this paragraph g shall be prepared in accordance with
the requirements of a form for registration promulgated
by the Commission under the Act that shall be both
permissible by its terms for use in connection with the
method of distribution contemplated by the holders of
shares of this Series and if the proposed method of
distribution shall be an underwriting of the shares,
then, in the opinion of the managing underwriter,
appropriate to such method of distribution. The
Corporation shall pay the cost of the registration
statements deemed to have been filed under this
paragraph g, excluding underwriting discounts and
commissions, if any, and the fees and expenses of the
counsel of the holders of shares of this Series.
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(4) The Corporation shall use its best efforts to
qualify the shares covered by any registration
statement for offer and sale under the securities or
"Blue Sky" laws of such states of the United States of
America as the holders of shares of this Series or any
underwriter may reasonably request; provided, however,
that in no event shall the Corporation be required to
qualify to do business in any state in order to qualify
the shares of this Series covered by any registration
for offer and sale under the securities or "Blue Sky"
laws of such state. The holder shall pay all
reasonable expenses incurred in qualifying such shares
under this paragraph g(4) with respect to offers and
sales made pursuant to registration statements filed
under paragraph g(1) and the incremental expense to the
Corporation under this paragraph g(4) attributable to
registration of the holder's shares with respect to
offers and sales made pursuant to registration
statements filed under paragraph g(2).
(5) The Corporation shall be permitted to
withdraw from registration the offering and sale of any
shares registered under a registration statement that
are not sold prior to cessation of the distribution
thereof by the underwriter in the case of a firm
commitment underwritten sale, or within nine (9) months
after the effective date in the case of a best efforts
underwriting or a sale on a national securities
exchange or through brokers in the over-the-counter
market.
h. Ranking of Series
-----------------
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<PAGE>
For purposes of these terms, any stock of any
series or class of the Corporation shall be deemed to
rank:
(1) Prior to the shares of this Series, either as
to dividends or upon liquidation, if the holders of
such stock shall be entitled to the receipt of
dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the
case may be, in preference or priority to the holders
of shares of this Series;
(2) On a parity with shares of this Series,
either as to dividends or upon liquidation, whether or
not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking
fund provisions, if any, be different from those of
this Series, if the holders of such stock shall be
entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, in
proportion to their respective dividend rates or
liquidation prices, without preference or priority, one
over the other, as between the holders of such stock
and the holders of shares of this Series; and
(3) Junior to shares of this Series, either as to
dividends or upon liquidation, if such class shall be
Common Stock or if the holders of shares of this Series
shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, in
preference or priority to the holders of shares of such
stock. The holders of
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<PAGE>
shares of this Series shall be entitled to receipt of
dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the
case may be, on a parity with the holders of any other
series of Preferred Stock, and in preference and prior
to the holders of any other class or series of capital
stock, unless such series or class shall hereafter be
authorized in accordance with Section h(4) and i of
these terms.
(4) The shares of this Series shall be deemed to
rank on a parity with the Corporation's $1.00 Preferred
Stock, Class A as to dividends and as to distribution
upon liquidation, voluntary or involuntary dissolution
or winding-up of the Corporation.
i. Amendment of Terms
------------------
As long as any shares of stock of this Series are
outstanding, the Corporation shall not, without the
consent of the holders of at least a majority of such
shares outstanding, either given by vote in person or
by proxy at a meeting of stockholders called for that
purpose, or given in writing, (i) amend the Certificate
of Incorporation if such action would alter or change
the preferences, special rights or powers given to the
shares of this Series so as to affect this Series
adversely; or (ii) authorize or create any class of
stock of the Corporation having any preference or
priority over this Series as to dividends or
distribution of assets made in dissolution, liquidation
or winding up of the Corporation.
j. Preemptive Rights
-----------------
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<PAGE>
The holders of shares of this Series shall not be
entitled to any preemptive rights or preferential
rights for subscription to any shares of any capital
stock of the Corporation.
k. Fractional Shares
-----------------
The Board of Directors, in its discretion, may
issue fractional shares of this Series.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(a) 1. The number of directors of the Corporation shall be
fixed as provided in the by-laws of the Corporation (the
"By-laws"). The directors shall be divided into three
classes, each class to contain as near as possible to one-
third (1/3) of the whole number of directors of the Board of
Directors so fixed in the By-laws, and, except as otherwise
provided by statute, in the case of any increase in the
number of directors fixed as provided in the By-laws, such
increase shall be apportioned among the classes of directors
so as to maintain each class as near as possible to one-
third of the whole number of directors as so increased. The
initial term of office for members of the first class shall
expire at the annual meeting of stockholders next following;
the initial term for members of the second class shall
expire at the annual meeting of stockholders one year
thereafter; and the initial term for members of the third
class shall expire at the annual meeting of stockholders two
years thereafter. At the expiration of the initial terms,
and of each
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<PAGE>
succeeding term of each class, the directors of each
class shall be elected to serve for a term of three years.
The By-laws may contain any provision regarding
classification not inconsistent with the terms hereof.
2. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, newly created
directorships resulting from any increase in the authorized
number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall
be filed by a majority vote of the directors then in office,
and directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the
term of the class to which they have been elected expires.
No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent
director.
3. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, any director, or the
entire Board of Directors, may be removed from office at any
time, but only for cause and only by the affirmative vote of
the holders of at least 80% of the voting power of all of
the shares of the Corporation entitled to vote for the
election of directors.
4. Notwithstanding anything contained in the
Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 80% of the
voting power of all of the shares of the Corporation
entitled to vote for the election of directors shall be
required to amend or repeal, or to adopt any provision
inconsistent with, this Article FIFTH (a).
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<PAGE>
(b) The Board of Directors shall have power, without the assent or
vote of the stockholders:
1. To make, alter, amend, change, add to or repeal the
By-laws of the Corporation; to fix and vary the amount to be
reserved for any proper purpose; to authorize and cause to
be executed mortgages and liens upon all or any part of the
property of the Corporation; to determine the use and
disposition of any surplus or net profits; and to fix the
times for the declaration and payment of dividends.
2. To determine from time to time whether, and to what
times and places, and under what conditions the accounts and
books of the Corporation (other than the stockledger) or any
of them, shall be open to the inspection of the
stockholders.
(c) The directors in their discretion my submit any contract or
act for approval or ratification at any annual meting of the
stockholders or any meeting of the stockholders called for the purpose
of considering any such act or contract, and any contract or act that
shall be approved or be ratified by the vote of the holders of a
majority of the stock of the corporation which is represented in
person or by proxy at such meeting and entitled to vote thereat
(provided that a lawful quorum of stockholders be there represented in
person or by proxy) shall be as valid and as binding upon the
Corporation and upon all the stockholders as though it had been
approved or ratified by every
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<PAGE>
stockholder of the Corporation, whether or not the contract or act would
otherwise be open to legal attack because of directors' interest, or for
any other reason.
(d) Any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special
meeting of stockholders of the Corporation and may not be effected by any
consent in writing of such stockholders. Special meetings of stockholders
of the Corporation may be called only by the Board of Directors, upon not
less than 10 nor more than 60 days' written notice. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary,
the affirmative vote of the holders of at least 80% of the voting power of
all of the shares of the Corporation entitled to vote for the election of
directors shall be required to amend or repeal, or to adopt any provision
inconsistent with, this Article FIFTH (d).
(e) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation; subject, nevertheless, to the
provisions of the statutes of Delaware, of this certificate, and to any By-
laws from time to time made by the stockholders; provided, however, that no
By-laws so made shall
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<PAGE>
invalidate any prior act of the directors which would have been valid if
such By-law had not been made.
SIXTH: The Corporation shall, to the full extent permitted by Section 145
of the Delaware General Corporation Law, as amended, from time to time,
indemnify all persons whom it may indemnify pursuant thereto.
SEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by law, and all rights and powers conferred
herein on stockholders, directors and officers are subject to this reserved
power.
EIGHTH: (a) 1. In addition to any affirmative vote required by law or
this Certificate of Incorporation, and except as otherwise expressly provided in
section (b) of this Article Eighth:
a. any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested Stockholder (as
hereinafter defined) or (ii) any other corporation (whether or not itself
an Interested Stockholder) which is, or after such merger or consolidation
would be, an Affiliate (as hereinafter defined) of an Interested
Stockholder; or
b. any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or
with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value of $1,000,000 or more; or
c. the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or combination thereof) having an aggregate Fair Market
Value of $1,000,000 or more; or
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<PAGE>
d. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder; or
e. any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
transaction (whether or not with or into or otherwise involving an
interested stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested Stockholder or any
Affiliate of any Interested Stockholder; shall require the affirmative vote
of the holders of (i) at least 80% of the then outstanding shares of Common
Stock of the Corporation entitled to vote generally in the election of
directors voting together as a single class; and (ii) at least 66% of the
then outstanding shares of each series of Preferred Stock then issued and
outstanding, each such series of Preferred Stock voting separately and
having one vote for each share of Preferred Stock issued and outstanding.
Such affirmative vote shall be required notwithstanding the fact that no
vote may be required, or that a lesser percentage may be specified, by law
or in any agreement with any national securities exchange or otherwise.
2. The Term "Business Combination" as used in this
Article EIGHTH shall mean any transaction which is referred
to in any one or more of clauses (a) through (e) of
paragraph 1 of this Section (a).
(b) The provisions of Section (a) of this article EIGHTH shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law
and any other provision of this Certificate of Incorporation, if the
Business Combination shall have been approved by a majority of the
Continuing Directors (as hereinafter defined).
(c) For the purposes of this Article EIGHTH:
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<PAGE>
1. A "person" shall mean any individual, firm, corporation or
other entity.
2. "Interested Stockholder" shall mean any person (other than
the Corporation or any Subsidiary) who or which:
a. is the beneficial owner, directly or indirectly, of more
than 10% of the voting power of the outstanding Voting Stock; or
b. is an Affiliate of the Corporation and at any time
within the two-year period immediately prior to the date in
question was the beneficial owner, directly or indirectly, of 10%
or more of the voting power of the then outstanding Voting Stock;
or
c. is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were at any time within the two-year
period immediately prior to the date in question beneficially
owned by any Interested Stockholder, if such assignment or
succession shall have occurred in the course of a transaction or
series of transactions not involving a public offering within the
meaning of the Securities Act of 1933.
3. A person shall be a "beneficial owner" of any Voting Stock:
a. which such person or any of its Affiliates or Associates
(as hereinafter defined) beneficially owns, directly or
indirectly; or
b. which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding; or
c. which are beneficially owned, directly or indirectly, by
any person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for
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<PAGE>
the purpose of acquiring, holding, voting or disposing of any
shares of Voting Stock.
4. For the purpose of determining whether a person is an
Interested Stockholder pursuant to paragraph 2 of this Section (c),
the number of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned through application of paragraph 3 of this
Section (c) but shall not include any of the shares of Voting Stock
which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
5. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
May 1, 1983.
6. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the
Corporation PROVIDED, HOWEVER, that for the purpose of the definition
of Interested Stockholder set forth in paragraph 2 of this Section
(c), the term "Subsidiary" shall mean only a corporation of which a
majority of each class of equity security is owned, directly or
indirectly, by the Corporation.
7. "Continuing Director" means any member of the Board of
Directors of the Corporation (the "Board") who is unaffiliated with
the Interested Stockholder and was a member of the Board prior to the
time that the Interested Stockholder became an Interested Stockholder,
and any successor of a Continuing Director who is unaffiliated with
the Interested Stockholder and is recommended to succeed a Continuing
Director by a majority of Continuing Directors then on the Board.
8. "Fair Market Value" means:
a. In the case of stock, the highest closing sale
price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New
York Stock Exchange Listed Stocks, or, if such stock is not
listed on such Exchange, on the principal United States
securities exchange or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a
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<PAGE>
share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc.
Automated Quotations System or any system then in use, or if no such
quotations are available, the fair market value on the date in
question of a share of such stock as determined by the Board in good
faith; and
b. In the case of property other than cash or stock,
the fair market value of such property on the date in question as
determined by the Board in good faith.
(d) The directors of the Corporation shall have the power and duty to
determine for the purposes of this article EIGHTH, on the basis of
information known to them after reasonable inquiry:
1. whether a person is an Interested Stockholder;
2. the number of shares of Voting Stock beneficially owned by
any person;
3. whether a person is an Affiliate or Associate of another;
4. whether the assets which are the subject of any Business
Combination have, or to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $1,000,000 or more.
(e) Nothing contained in this Article EIGHTH shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by
law.
(f) Notwithstanding any other provision of this Certificate of
Incorporation or the By-laws of the Corporation (and notwithstanding the
fact that a lesser percentage may be specified by law, this Certificate of
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<PAGE>
Incorporation or the By-laws of the Corporation), the affirmative vote of
the holders of 80% or more of the voting power of the shares of the then
outstanding shares of each class entitled to vote under Section a hereof,
voting separately, shall be required to amend or repeal, or adopt any
provision inconsistent with, this Article EIGHTH of this Certificate of
Incorporation.
NINTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by Paragraph 7 of Subsection b
of Section 102 of the General Corporation Law of the State of Delaware as the
same may be amended or supplemented.
This restated Certificate of Incorporation was duly adopted by the Board of
Directors in accordance with Section 245 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, said Staff Buildings, Inc. has caused this Certificate
to be signed by Ephraim Koschitzki, its President, and attested by David
Savitsky, its Secretary, this 6th day of June, 1988.
STAFF BUILDERS, INC.
By: /s/ Ephraim Koschitzki
-------------------------------
Ephraim Koschitzki, President
ATTEST:
By: /s/ David Savitsky
--------------------------
David Savitsky, Secretary
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<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
STAFF BUILDERS, INC.
The undersigned, being the President and the Secretary, respectively, of
Staff Builders, Inc., hereby certify that:
1. The name of the Corporation (hereinafter called "Corporation") is
Staff Builders, Inc.
2. The Restated Certificate of Incorporation of the Corporation is hereby
amended to amend Article FOURTH of the Restated Certificate of Incorporation to
increase the number of authorized shares of common stock, $.01 par value per
share, from 15,000,000 shares to 25,000,000 shares. As amended, the first
paragraph of said Article FOURTH shall read in its entirety as follows:
FOURTH: The Corporation shall be authorized to issue the following
shares:
Number
Class of Shares Par Value
----- --------- ---------
PREFERRED 10,000 $1.00
COMMON 25,000,000 $ .01
3. The amendment of the Certificate of Incorporation herein
certified has been duly adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this document and
affirm that the facts contained therein are true under penalties of perjury.
Dated: August 8, 1991
/s/ Ephraim Koschitzki
-----------------------------
President, Ephraim Koschitzki
Attest:
/s/ David Savitsky
- -------------------------
Secretary, David Savitsky
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
STAFF BUILDERS, INC.
The undersigned, being the President and the Secretary, respectively, of
Staff Builders, Inc., hereby certify that:
1. The name of the Corporation (hereinafter called "Corporation") is
Staff Builders, Inc.
2. The Restated Certificate of Incorporation of the Corporation is hereby
amended to amend Article FOURTH of the Restated Certificate of Incorporation to
increase the number of authorized shares of common stock, $.01 par value per
share, from 25,000,000 shares to 35,000,000 shares. As amended, the first
paragraph of said Article FOURTH shall read in its entirety as follows:
FOURTH: The Corporation shall be authorized to issue the following
shares:
Number
Class of Shares Par Value
----- --------- ---------
PREFERRED 10,000 $1.00
COMMON 35,000,000 $ .01
3. The amendment of the Certificate of Incorporation herein
certified has been duly adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this document and
affirm that the facts contained therein are true under penalties of perjury.
Dated: August 13, 1992
/s/ Stephen Savitsky
-----------------------------
Stephen Savitsky, President
Attest:
/s/ David Savitsky
- -------------------------
David Savitsky, Secretary
<PAGE>
CERTIFICATE OF RETIREMENT OF STOCK
OF
STAFF BUILDERS, INC.
Staff Builders, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter referred to as the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors (the "Board") of the Corporation, by
the unanimous written consent of its members, filed with the minutes of the
Board, duly adopted a resolution retiring shares of the capital stock of the
Corporation, which were issued but not outstanding, to the extent hereinafter
set forth, and which retired shares had capital applied in connection with their
acquisition.
SECOND: The shares of capital stock of the Corporation, which are retired,
are identified as being "$1.00 Preferred Stock, Class B", $1.00 par value per
share (the "Class B Preferred Stock").
THIRD: That in accordance with the provisions of Section 243 of the
Delaware General Corporation Law and in accordance with the provisions of the
Restated Certificate of Incorporation of the Corporation, the capital stock of
the Corporation which is hereby retired shall resume the status of authorized
and unissued shares of Preferred Stock, without designation as to series until
such shares are once more designated as part of a particular series by the Board
of Directors of the Corporation and, upon the effective date of the filing of
this Certificate, the Restated Certificate of Incorporation of the Corporation
shall be amended so as to delete therefrom all reference to said Class B
Preferred Stock.
<PAGE>
IN WITNESS WHEREOF, said Staff Builders, Inc. has caused this Certificate
to be signed by Stephen Savitsky, its President and attested by David Savitsky,
its Secretary, this 16th day of February, 1994.
STAFF BUILDERS, INC.
By: /s/ Stephen Savitsky
--------------------------
Stephen Savitsky
President
ATTEST:
By: /s/ David Savitsky
------------------------
David Savitsky
Secretary
<PAGE>
CERTIFICATE OF RETIREMENT OF STOCK
OF
STAFF BUILDERS, INC.
Staff Builders, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter referred to as the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors (the "Board") of the Corporation, by
the unanimous written consent of its members, filed with the minutes of the
Board, duly adopted resolutions retiring shares of the capital stock of the
Corporation, which were issued but not outstanding, to the extent hereinafter
set forth, and which retired shares had capital applied in connection with their
acquisition.
SECOND: The shares of capital stock of the Corporation, which are retired,
are identified as being "$1.00 Preferred Stock, Class A", $1.00 par value per
share (the "Class A Stock").
THIRD: That in accordance with the provisions of Section 243 of the
Delaware General Corporation Law and in accordance with the provisions of the
Restated Certificate of Incorporation of the Corporation, the capital stock of
the Corporation which is hereby retired shall resume the status of authorized
and unissued shares of Preferred Stock, without designation as to series until
such shares are once more designated as part of a particular series by the Board
of Directors of the Corporation and, upon the effective date of the filing of
this Certificate, the Restated Certificate of Incorporation of the Corporation
shall be amended so as to delete therefrom all reference to said Class A Stock.
IN WITNESS WHEREOF, the undersigned have executed this document and affirm
the facts contained herein are true under the penalty of perjury.
STAFF BUILDERS, INC.
Dated: June 3, 1994 By: /s/ Stephen Savitsky
---------------------------
Stephen Savitsky, President
ATTEST:
By: /s/ David Savitsky
-------------------------
David Savitsky, Secretary
<PAGE>
CERTIFICATE OF DESIGNATIONS, RIGHTS
AND PREFERENCES OF THE CLASS A PREFERRED
STOCK OF STAFF BUILDERS, INC.
--------------------------------------
Pursuant to Section 151 of the
Delaware General Corporation Law
--------------------------------------
The undersigned, being the Chairman of the Board of STAFF BUILDERS,
INC., a Delaware corporation (the "Corporation"), pursuant to Section 151 of the
General Corporation Law of the State of Delaware, does hereby certify that,
pursuant to the authority conferred on the Board of Directors in the Restated
Certificate of Incorporation of the Corporation, the Board of Directors, by
action taken on May 27, 1994 authorized and adopted the following resolution
providing for the creation of a class of its Preferred Stock to be designated
"Class A Preferred Stock":
RESOLVED, that a class of preferred stock of the Corporation be, and
it hereby is, given the distinct designation of the Class A Preferred Stock (the
"Class A Stock"), said Class A Stock to consist of Six Hundred Sixty-Six and
two-thirds (666 2/3) shares of the par value of $1.00 per share, of which the
voting powers, preferences and rights shall be as follows:
1. DIVIDENDS ON CLASS A STOCK. The holders of Class A Stock shall
be entitled to receive dividends at the preferential dividend rate of $1.00 per
share per annum. Such dividends shall be non-cumulative.
<PAGE>
2. PRIORITY. Dividends on the Class A Stock, when declared by the
Board of Directors out of funds legally available therefor, shall be payable
before any dividends are paid on shares of Common Stock of the Corporation
("Common Stock") or shares of any other class of stock of the Corporation
ranking junior to the Class A Stock in respect of dividends.
3. LIQUIDATION RIGHTS. The preferential amount which holders of the
Class A Stock shall be entitled to receive from the assets of the Corporation in
the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation is $1.00 per share. In the event of liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, the holders
of the Class A Stock shall be entitled to receive the amounts aforesaid before
any payment or distribution shall be made on or in respect of shares of Common
Stock or shares of any other class of stock of the Corporation ranking junior to
the Class A Stock in respect of assets. For the purposes of this Certificate, a
merger of the Corporation or the sale of all or substantially all of its assets
shall not be deemed to be a liquidation, dissolution or winding up of the
Corporation.
4. VOTING RIGHTS. The holders of Class A Stock will not have any
voting rights except on matters concerning the substantive rights, privileges
and preferences of the Class A Stock, and as otherwise provided (i) in Article
EIGHTH of the
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<PAGE>
Corporation's Restated Certificate of Incorporation, or (ii) in the
Corporation's By-laws.
5. PREEMPTIVE RIGHTS. The holders of shares of Class A Stock shall
not be entitled to any preemptive rights or preferential rights for subscription
to any shares of any capital stock of the Corporation except as herein provided.
6. STATED VALUE. The stated value of the Class A Stock shall be
$1.00 per share. An amount equal to such stated value shall be credited to the
capital stock of the Corporation when the Class A Stock is issued.
IN WITNESS WHEREOF, the undersigned have executed this document and
affirm that the facts contained herein are true under penalty of perjury.
Dated: June 6, 1994
STAFF BUILDERS, INC.
By: /s/ Stephen Savitsky
---------------------------
Stephen Savitsky, Chairman
of the Board and Director
ATTEST:
By: /s/ David Savitsky
----------------------------
David Savitsky, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
STAFF BUILDERS, INC.
The undersigned, being the President and the Secretary, respectively, of
Staff Builders, Inc., hereby certify that:
1. The name of the Corporation (hereinafter called "Corporation") is
Staff Builders, Inc.
2. The Restated Certificate of Incorporation of the Corporation is hereby
amended to amend Article FOURTH of the Restated Certificate of Incorporation to
increase the number of authorized shares of common stock, $.01 par value per
share, from 35,000,000 shares to 50,000,000 shares. As amended, the first
paragraph of said Article FOURTH shall read in its entirety as follows:
FOURTH: The Corporation shall be authorized to issue the following
shares:
Number
Class of Shares Par Value
----- --------- ---------
PREFERRED 10,000 $1.00
COMMON 50,000,000 $ .01
3. The amendment of the Certificate of Incorporation herein
certified has been duly adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this document and
affirm that the facts contained therein are true under penalties of perjury.
Dated: August 15, 1994
/s/ Stephen Savitsky
-----------------------------
Stephen Savitsky, President
Attest:
/s/ David Savitsky
- -------------------------
David Savitsky, Secretary
<PAGE>
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 ______________ 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
<PAGE>
Common Stock. At any time shares of the Class B Common Stock are
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)
shall 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
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<PAGE>
share of Class B Common Stock held of record by such holder as of the
record 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
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<PAGE>
shares of Class B Common Stock shall cease at such time; and the person in
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 in a change in the beneficial
ownership of such share unless such transaction is 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
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<PAGE>
2. The appointment of a successor trustee, guardian, committee
of an incompetent, conservator or custodian with respect to such
share; or
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
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<PAGE>
Corporation on or before September 15, 1995, in accordance with the
procedures established by the Corporation as provided in Paragraph (i)
hereof, of satisfactory evidence.
(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.
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<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment as of the _____ day of ______________________, 1995.
------------------------------------
Name:
Title:
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