EXHIBIT 4.3
NON-QUALIFIED STOCK OPTION AGREEMENT
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THIS STOCK OPTION AGREEMENT (the "Agreement") entered into as of this 25th
day of August, 2001, between SFBC International, Inc. (the "Company") and Xxxxx
Xxxx, an investor-relations consultant to the Company (the "Consultant").
WHEREAS, by action taken by the Board of Directors (the "Board")
previously, it granted the Consultant the right to purchase common stock of the
Company pursuant to non-qualified options (the "Options"); and
WHEREAS, the parties wish to formalize the grant of Options.
NOW THEREFORE, in consideration of the mutual covenants and promises
hereafter set forth and for other good and valuable consideration, receipt of
which is acknowledged, the parties hereto agree as follows:
1. Acknowledgement of Options. The Company acknowledges that the Consultant
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holds 12,500 Options, exercisable at $6.00 per share, which he received while an
employee of the Company. The shares of common stock acquired upon exercise of
the Options are unregistered unless the Company voluntarily files a registration
statement covering the public sale of such shares. The Company shall include the
shares of common stock issuable upon exercise of Options in any registration
statement it files for its 1999 Stock Option Plan. This Agreement replaces a
prior Non-Qualified Stock Option Agreement with the Consultant which is null and
void.
2. Price. The exercise price of the shares of common stock subject to the
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Options shall be $6.00 per share.
3. When Exercisable.
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(a) As of the date of this Agreement, all 12,500 Options are fully
vested.
(b) Subject to Section 4 of this Agreement, the Options shall remain
exercisable through January 16, 2011.
(c) Subject to Section 4 of this Agreement, the Options may be
exercised through January 16, 2011.
4. Termination of Relationship. Notwithstanding any other provision of this
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Agreement, all Options, whether vested or unvested shall be immediately
forfeited in the event of:
(1) Purchasing or selling securities of the Company without written
authorization in accordance with the Company's inside information guidelines
then in effect;
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(2) Breaching any duty of confidentiality including that required
by the Company's inside information guidelines then in effect;
(3) Competing with the Company;
(4) Being unavailable for consultation after termination of his
relationship with the Company's employ if such availability is a condition of
any agreement between the Company and the Consultant;
(5) Recruitment of Company personnel after termination of,
whether such termination is voluntary or for cause;
(6) Failure to assign any invention or technology to the Company
if such assignment is a condition of any agreements between the Company and the
Consultant; and
(7) A finding by the Company's Board that the Consultant has
acted against the interests of the Company.
5. Profits on the Sale of Certain Shares; Redemption. If any of the events
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specified in Section 4 of this Agreement occur within one year from the last
date the Consultant performed services for the Company (the "Termination Date")
(or such longer period required by any written agreement), all profits earned
from the Consultant's sale of the Company's securities, including the sale of
shares of common stock underlying Options, during the two-year period commencing
one year prior to the Termination Date shall be forfeited and forthwith paid by
the Consultant to the Company. Further, in such event, the Company may at its
option redeem shares of common stock acquired upon exercise of Options. The
Company's rights under this Section 5 do not lapse one year from the Termination
Date but are a contract right subject to any appropriate statutory limitation
period.
6. Method of Exercise. The Options shall be exercisable by a written notice
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which shall:
(a) state the election to exercise the Options, the number of shares
to be exercised, the person in whose name the stock certificate or certificates
for such shares of common stock is to be registered, his address and social
security number (or if more than one, the names, addresses and social security
numbers of such persons);
(b) contain such representations and agreements as to the holder's
investment intent with respect to such shares of common stock as set forth in
Section 10 hereof;
(c) be signed by the person or persons entitled to exercise the
Options and, if the Options are being exercised by any person or persons other
than the optionee, be accompanied by proof, satisfactory to counsel for the
Company, of the right of such person or persons to exercise the Options.
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(d) be accompanied by full payment of the purchase or exercise price
therefor in United States dollars by check.
The certificate or certificates for shares of common stock as to which the
Options shall be exercised shall be registered in the name of the person or
persons exercising the Options.
7. Adjustments. Upon the occurrence of any of the following events, the
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Consultant's rights with respect to Options granted to him hereunder shall be
adjusted as hereinafter provided unless otherwise specifically provided in a
written agreement between the Consultant and the Company relating to such
Options:
(a) If the shares of common stock shall be subdivided or combined into a
greater or smaller number of shares or if the Company shall issue any shares of
its common stock as a stock dividend on its outstanding common stock, the number
of shares of common stock deliverable upon the exercise of Options shall be
appropriately increased or decreased proportionately, and appropriate
adjustments shall be made in the purchase price per share to reflect such
subdivision, combination or stock dividend.
(b) If the Company is to be consolidated with or acquired by another
entity pursuant to an Acquisition, the Board of any entity assuming the
obligations of the Company hereunder (the "Successor Board") shall either (i)
make appropriate provision for the continuation of such Options by substituting
on an equitable basis for the shares then subject to such Options the
consideration payable with respect to the outstanding shares of common stock in
connection with the Acquisition; or (ii) terminate all Options in exchange for a
cash payment equal to the excess of the fair market value of the shares subject
to such Options over the exercise price thereof.
(c) In the event of a recapitalization or reorganization of the Company
(other than a transaction described in Section 7(b) above) pursuant to which
securities of the Company or of another corporation are issued with respect to
the outstanding shares of common stock, the Consultant upon exercising Options
shall be entitled to receive for the purchase price paid upon such exercise the
securities he would have received if he had exercised his Options prior to such
recapitalization or reorganization.
(d) Except as expressly provided herein, no issuance by the Company of
shares of common stock of any class or securities convertible into shares of
common stock of any class shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of shares subject to Options.
No adjustments shall be made for dividends or other distributions paid in cash
or in property other than securities of the Company.
(e) No fractional shares shall be issued and the Consultant shall
receive from the Company cash in lieu of such fractional shares.
(f) The Board or the Successor Board shall determine the specific
adjustments to be made under this Section 7, and its determination shall be
conclusive. If the Consultant receives securities or cash in connection with a
corporate transaction described in Section 7(a), (b) or (c) above as a result of
owning such restricted common stock, such securities or cash shall be
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subject to all of the conditions and restrictions applicable to the restricted
common stock with respect to which such securities or cash were issued, unless
otherwise determined by the Board or the Successor Board.
8. Necessity to Become Holder of Record. Neither the Consultant nor his/her
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estate, shall have any rights as a stockholder with respect to any shares
covered by the Options until such person shall have become the holder of record
of such shares. No adjustment shall be made for cash dividends or cash
distributions, ordinary or extraordinary, in respect of such shares for which
the record date is prior to the date on which he/she shall become the holder of
record thereof.
9. Reservation of Right to Terminate Relationship. Nothing contained in
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this Agreement shall restrict the right of the Company to terminate the
relationship of the Consultant at any time, with or without cause. The
termination of the relationship of the Consultant by the Company, regardless of
the reason therefor, shall have the results provided for in Sections 4 and 5 of
this Agreement.
10. Conditions to Exercise of Options. In order to enable the Company to
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comply with the Securities Act of 1933 (the "Securities Act") and relevant state
law, the Company may require the Consultant, his estate, or any Transferee as a
condition of the exercising of the Options granted hereunder, to give written
assurance satisfactory to the Company that the shares subject to the Options are
being acquired for his own account, for investment only, with no view to the
distribution of same, and that any subsequent resale of any such shares either
shall be made pursuant to a registration statement under the Securities Act and
applicable state law which has become effective and is current with regard to
the shares being sold, or shall be pursuant to an exemption from registration
under the Securities Act and applicable state law.
The Options are subject to the requirement that, if at any time the Board
shall determine, in its discretion, that the listing, registration, or
qualification of the shares of common stock subject to the Options upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary as a condition of, or
in connection with the issue or purchase of shares under the Options, the
Options may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected.
11. Duties of Company. The Company shall at all times during the term
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Options:
(a) Reserve and keep available for issue such number of shares of its
authorized and unissued common stock as will be sufficient to satisfy the
requirements of this Agreement;
(b) Pay all original issue taxes with respect to the issue of shares
pursuant hereto and all other fees and expenses necessarily incurred by the
Company in connection therewith;
(c) Use its best efforts to comply with all laws and regulations which,
in the opinion of counsel for the Company, shall be applicable thereto.
12. Parties Bound by Plan. The Plan and each determination, interpretation
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or other action made or taken pursuant to the provisions of the Plan shall be
final and shall be binding and
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conclusive for all purposes on the Company and the Consultant and their
respective successors in interest.
13. Severability. In the event any parts of this Agreement are found to be
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void, the remaining provisions of this Agreement shall nevertheless be binding
with the same effect as though the void parts were deleted.
14. Arbitration. Any controversy, dispute or claim arising out of or
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relating to this Agreement, or its interpretation, application, implementation,
breach or enforcement which the parties are unable to resolve by mutual
agreement, shall be settled by submission by either party of the controversy,
claim or dispute to binding arbitration in Miami-Dade County, Florida (unless
the parties agree in writing to a different location), before a single
arbitrator in accordance with the rules of the American Arbitration Association
then in effect. In any such arbitration proceeding the parties agree to provide
all discovery deemed necessary by the arbitrator. The decision and award made by
the arbitrator shall be final, binding and conclusive on all parties hereto for
all purposes, and judgment may be entered thereon in any court having
jurisdiction thereof.
15. Benefit. This Agreement shall be binding upon and inure to the benefit
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of the parties hereto and their legal representatives, successors and assigns.
16. Notices and Addresses. All notices, offers, acceptance and any other
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acts under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar receipted delivery, by facsimile delivery or, if mailed, postage
prepaid, by certified mail, return receipt requested, as follows:
The Consultant: Xx. Xxxxx Xxxx
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxx, 00000
Facsimile (000) 000-0000
The Company: SFBC International, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Facsimile (000) 000-0000
Attention: Xxxxxx Xxxxxxx
Chief Executive Officer
with a copy to: Xxxxxxx Xxxxxx, P.A.
0000 Xxxx Xxxxx Xxxxx Xxxx., Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be conclusive
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evidence of successful facsimile delivery. Time shall be counted to, or from, as
the case may be, the delivery in person or by mailing.
17. Attorney's Fees. In the event that there is any controversy or claim
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arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof, and any action or proceeding is commenced to enforce the
provisions of this Agreement, the prevailing party shall be entitled to a
reasonable attorney's fee, costs and expenses.
18. Governing Law. This Agreement and any dispute, disagreement, or issue
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of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided herein or performance shall be
governed or interpreted according to the internal laws of the State of Delaware
without regard to choice of law considerations.
19. Oral Evidence. This Agreement constitutes the entire Agreement between
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the parties and supersedes all prior oral and written agreements between the
parties hereto with respect to the subject matter hereof. Neither this Agreement
nor any provision hereof may be changed, waived, discharged or terminated
orally, except by a statement in writing signed by the party or parties against
which enforcement or the change, waiver discharge or termination is sought.
20. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
21. Additional Documents. The parties hereto shall execute such additional
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instruments as may be reasonably required by their counsel in order to carry out
the purpose and intent of this Agreement and to fulfill the obligations of the
parties hereunder.
22. Section or Paragraph Headings. Section headings herein have been
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inserted for reference only and shall not be deemed to limit or otherwise
affect, in any matter, or be deemed to interpret in whole or in part any of the
terms or provisions of this Agreement.
IN WITNESS WHEREOF the parties hereto have set their hands and seals the
day and year first above written.
WITNESSES: SFBC INTERNATIONAL, INC.
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By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, M.D., President
CONSULTANT
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By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
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