EXHIBIT
4.3
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"). SUCH SECURITIES MAY NOT BE OFFERED OR SOLD
UNLESS REGISTERED UNDER THE ACT OR UNLESS AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS
AVAILABLE.
NON-QUALIFIED OPTION AGREEMENT
NON-QUALIFIED OPTION AGREEMENT (the
"Agreement"), dated as of March 28, 1997, between STAFF
BUILDERS, INC., a Delaware corporation (the
"Corporation), and Xxxxxxx Xxxxxxxxxx, (the "Grantee").
Pursuant to the terms of the Employment
Agreement between the Corporation and the Grantee dated
June 1, 1987, as amended on November 1, 1991 and August
17, 1995, Grantee is entitled to receive a Non-Qualified
Option to replace the option for 225,440 shares of Class
A Common Stock issued to him under the Corporation's
1986 Non-Qualified Stock Option Plan (the 'Replaced
Option'). Grantee has requested that the Corporation
issue the Non-Qualified Option.
The Corporation and Grantee agree as follows:
1. Grant of Option - The Corporation hereby
grants to the Grantee, effective as of March 28, 1997 a
non-qualified option (the 'Option') to purchase an
aggregate of 225,440 shares of Class A Common Stock of
the Corporation (the 'Shares') at an exercise price of
$1.75 per Share (the 'Option Price'). Effective upon
the grant of the Option the Replaced Option shall be
cancelled and null and void.
2. Option Period - The Option granted hereby
shall expire on March 28, 2000.
3. Medium and Time Of Payment - The exercise
price of this option shall be payable in United States
dollars and may be paid in cash or by certified or
cashier's check, payable to the order of the
Corporation. The Corporation shall have the power to
accept full or partial payment in Shares which shall be
valued at fair market value on the date of payment
("Payment Date"). Payment in full shall be required
prior to the issuance of any Shares pursuant to this
Option.
4. Exercise of the Option - The Option
may be exercised by written notice to the Corporation
indicating the number of Shares with respect to which it
is being exercised. Such notice shall be signed by the
Grantee (or his transferee) and shall be accompanied by
full payment of the exercise price. This Option shall
not be exercisable either in whole or in part prior to
compliance with all requirements of law governing the
issuance and exercise of options. The Corporation shall
exercise reasonable due diligence in order to ensure
that the aforementioned requirements are satisfied.
5. Issuance of Shares of Common Stock -
Certificates for Shares of Class A Common Stock shall be
issued upon the exercise of this Option only when all
necessary action shall have been taken by the
Corporation to render the Class A Common Stock, when
issued, validly issued, fully paid and non-assessable.
The Corporation shall exercise reasonable due diligence
in order to ensure that the aforementioned actions are
satisfied.
6. Non-Transferability - This Option shall
be exercisable only by the Grantee, his heirs and
personal representatives, and shall not be assignable or
transferable by him except to his estate or through the
laws of intestacy.
7. Recapitalizations, Mergers,
Consolidations, and Similar Transactions
(a) In the event the Shares, as presently
constituted, shall be changed into or exchanged for a
different number or kind of shares or other securities
of the Corporation or of another corporation (whether by
reason of merger, consolidation, recapitalization,
reclassification, split, reverse split, combination of
shares, or otherwise) or if the number of such Shares
shall be increased through the payment of a share
dividend, then the Grantee shall have the right to
receive upon exercise of the Option, the number and kind
of shares or other securities into which each
outstanding Share shall be so changed, or for which each
such Share shall be exchanged, or to which each such
Share shall be entitled, as the case may be. The Option
Price and other terms of the Option shall be
appropriately amended to reflect the foregoing events;
provided, however, that in no event may the Option Price
on any outstanding options be increased above that
existing on the date of issuance of the Option. In the
event there shall be any other change in the number or
kind of the outstanding Shares, or of any shares or
other securities into which such Shares shall have been
changed, or for which it shall have been exchanged,
then, if the Board of Directors shall, in its sole
discretion, determine that such change equitably
requires an adjustment in the Option, such adjustment
shall be made in accordance with such determination,
subject to the proviso set forth in the immediately
preceding sentence. Notice of any adjustment shall be
given by the Corporation to the Grantee and such
adjustment (whether or not such notice is given) shall
be effective and binding on the Grantee.
(b) Fractional shares resulting from any
adjustment in options pursuant to Section 7 may be
settled in cash or otherwise as the Board of Directors
shall determine.
(c) The Board of Directors shall have the
power, in the event of the disposition of all or
substantially all of the assets of the Corporation, or
the dissolution of the Corporation, or the merger or
consolidation of the Corporation with or into any other
corporation, or the merger or consolidation of any other
corporation into the Corporation, or the making of a
tender offer to purchase all or a substantial portion of
the shares of the Corporation, to amend all outstanding
options (upon such conditions as it shall deem fit) to
permit the exercise of all such options prior to the
effective date of any such transaction and to terminate
such options as of such effective date. If the Board of
Directors exercise such power, all options then
outstanding shall be deemed to have been amended to
permit the exercise thereof in whole or in part by the
Grantee at any time or from time to time as determined
by the Board of Directors prior to the effective date of
such transaction and such options shall be deemed to
terminate upon such effective date.
8. No Limitation on Rights of the
Corporation - The grant of this Option shall not in any
way affect the right or power of the Corporation to make
adjustments, reclassifications or changes in its capital
or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part
of its business or assets.
9. Rights as a Shareholder - The Grantee or
a transferee of the Grantee shall have no rights as a
shareholder with respect to any Shares covered by the
Option prior to the date the Option is exercised by the
Grantee or the transferee of the Grantee. No adjustment
shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or
distributions or other rights for which the record date
is prior to such date.
10. Shares of Common Stock - The Shares of
Class A Common Stock covered by this Option shall be
nonvoting and entitled to no dividends prior to the
exercise of the Option.
11. Registration of Class A Common Stock -
The Corporation shall file with the Securities and
Exchange Commission, and shall use its best efforts to
maintain in effect, a registration statement under the
Act with respect to the sale of the Shares, for a period
ending April 28, 2000. The Grantee shall promptly
furnish to the Corporation all information requested of
him for inclusion in the registration statement and
shall promptly furnish the Corporation with any changes
to such information. The Grantee may sell the Shares
only pursuant to such registration statement or pursuant
to an applicable exemption from registration under the
Act. The Corporation shall promptly advise the Grantee
of the effectiveness of such registration statement and
any stop order or other reason which would prevent the
Grantee from being permitted to sell the Shares pursuant
to such registration statement.
12. Disposition of Class A Common Stock - The
Corporation may, as a condition precedent to the
exercise of the Option, require the Grantee or a
transferee of the Grantee to enter into such agreements
or to make such representations as may be required to
make lawful under the laws of the United States or any
state the exercise of the Option and the ultimate
disposition of the Shares acquired by such exercise.
13. No Obligation to Exercise Option - The
granting of the Option shall impose no obligation upon
the Grantee to exercise the Option.
14. Issuance of Form 1099 - The
Corporation shall issue to Grantee a Form 1099 for any
year in which Grantee exercises all or a portion of the
Option. The Form 1099 will report as income to the
Grantee the difference between the Option Price and the
fair market value per share of the Corporation's Class
A Common Stock as of the date of exercise.
15. Notice - Notice to the Corporation shall
be deemed given if in writing and mailed to the
Secretary of the Corporation by first-class, certified
mail at the then principal office of the Corporation.
16. Governing Law - Except to the extent
preempted by federal law, this Agreement shall be
construed and enforced in accordance with, and governed
by, the laws of the State of Delaware.
IN WITNESS WHEREOF, the Corporation and
the Grantee have duly executed this Agreement.
Attest: STAFF BUILDERS, INC.
/s/ Xxxxx Xxxxxxxx BY:/s/ Xxxxxxx Xxxxxxxx
Secretary
/s/ Xxxxxxx Xxxxxxxxxx
Grantee
