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EXHIBIT 10.5
OPTION TO PURCHASE
THIS OPTION TO PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of the ______ day of May, 1997, by and between XXXXXXX X. XXXXX
("Xxxxx") and STAFF LEASING, INC., a Florida corporation ("Staff Leasing").
WHEREAS, Xxxxx is the owner of 100 shares (the "Shares") of common
stock , $.01 par value, of Staff Acquisition, Inc., a Delaware corporation
("Staff Acquisition"), which constitute all of the issued and outstanding
capital stock of Staff Acquisition; and
WHEREAS, Staff Acquisition is the sole general partner of Staff
Capital, L.P., a Delaware limited partnership (the "Partnership"), and of each
of the operating limited partnerships ("OLPs"), all of which are Delaware
limited partnerships, which operate the business of the Partnership; and
WHEREAS, the Partnership is the sole limited partner of each of the
OLPs; and
WHEREAS, Staff Leasing was formed for the purpose of effecting a
reorganization (the "Reorganization") pursuant to which all of the holders of
the limited partnership interests in the Partnership will exchange their
partnership interests for shares of common stock, $.01 par value, of Staff
Leasing ("Staff Leasing Common Stock"), warrants to purchase Staff Leasing
Common Stock and/or cash, as the case may be, and Staff Leasing will become the
sole limited partner of the Partnership and the OLPs; and
WHEREAS, immediately following the Reorganization, Staff Leasing
intends to consummate an initial public offering (the "Initial Public Offering")
of Staff Leasing Common Stock; and
WHEREAS, to facilitate the Reorganization, the Initial Public Offering
and the operation of the business of Staff Leasing following the Initial Public
Offering, Xxxxx has agreed (i) to deposit the Shares in trust under the terms of
a Voting Trust Agreement dated even date herewith (the "Voting Trust Agreement")
by and between Xxxxx and Staff Leasing, as trustee (Staff Leasing in its
capacity as trustee is hereinafter referred to as the "Trustee"), and (ii) to
grant to Staff Leasing an option to purchase the Shares, on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
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1. Grant of Option to Purchase. Xxxxx hereby grants to Staff Leasing,
subject to the conditions hereinafter set forth, the exclusive and irrevocable
right, privilege and option to purchase the Shares. Such option may be exercised
at any time prior to the termination of this Agreement. Staff Leasing shall
exercise such option by giving written notice thereof to Xxxxx, which notice
shall set forth a date for the purchase of the Shares. Such notice shall be
given no less than 5 days prior to the purchase date. On the purchase date, in
payment of the purchase price for the Shares, Staff Leasing shall issue to Xxxxx
_______ shares of Staff Leasing Common Stock (subject to adjustment as provided
in Section 4 hereof) which shall be registered in the name of Xxxxx (or his
designee), and Xxxxx shall deliver the Voting Trust Certificate held by Xxxxx to
the Trustee for cancellation pursuant to the Voting Trust Agreement and shall
either deliver or direct the Trustee to deliver to Staff Leasing a stock
certificate or certificates for the Shares either registered in the name of
Staff Leasing or properly endorsed for transfer to Staff Leasing.
2. Representations and Warranties of Xxxxx. Xxxxx hereby represents and
warrants to Staff Leasing (i) that he owns the Shares free and clear of all
liens, charges and encumbrances (other than those contained herein or in the
Voting Trust Agreement); (ii) that the Shares have been duly issued and are
fully paid and non-assessable and constitute all of the issued and outstanding
shares of capital stock of Staff Acquisition; (iii) that he has the unencumbered
and unrestricted right to grant the option contained herein to purchase the
Shares; (iv) that he has the legal capacity to enter into this Agreement; and
(v) that no consent or approval of any third party or of any governmental or
regulatory authority or of any securities exchange, which has not been obtained,
is necessary in connection with the execution or performance by Xxxxx of this
Agreement.
3. Restriction on Transfer. Except as provided herein or in the Voting
Trust Agreement, Xxxxx will not transfer, pledge, hypothecate, give or otherwise
alienate, in whole or in part, the Voting Trust Certificate or the Shares, or
any interest therein, so long as this Agreement is in effect.
4. Adjustment of Number of Shares. In the event that, during the period
subsequent to the date hereof and prior to exercise of the option to purchase
pursuant to Section 1 hereof, the outstanding shares of Staff Leasing Common
Stock shall have been changed into a different number of shares by reason of any
reclassification, recapitalization, split up, combination, exchange of shares,
or readjustment, or in the event stock rights or stock dividends thereon shall
have been declared by Staff Leasing with a record date within said period, then
the number of shares of Staff Leasing Common Stock issuable in exchange for the
Shares shall be correspondingly adjusted.
5. Limitation on Actions by Xxxxx. Xxxxx will take no action as an
officer or director of Staff Acquisition to amend the Certificate of
Incorporation or the Bylaws of Staff Acquisition, or any action which would in
any way adversely affect the voting rights of the holders of the Shares
including, without limitation, the right of such holders to, remove members of
the Board
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of Directors of Staff Acquisition without cause, amend the Bylaws of Staff
Acquisition, or elect directors to fill vacancies or as additional members of
the Board of Directors of Staff Acquisition. In addition, without the prior
written consent of the Trustee under the Voting Trust Agreement, Xxxxx will take
no action as an officer or director of Staff Acquisition to authorize any
distributions of cash or property by Staff Acquisition as a dividend or
otherwise.
6. Tax Free Exchange. The parties hereto intend that the purchase of
the Shares in exchange for shares of Staff Leasing Common Stock qualify as a tax
free transaction under Section 368(a)(1)(B) of the Internal Revenue Code of
1986, as amended, and in the event the option to purchase the Shares is
exercised, the parties agree to take all steps necessary to qualify the
transaction as such tax free transaction.
7. Term of Agreement. This Agreement shall remain in effect until
December 31, 2002.
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8. General Provisions.
(a) All of the covenants and agreements contained in this
Agreement shall be binding upon, and shall inure to the benefit of, the
respective parties and their successors, assigns, heirs, executors,
administrators and other legal representatives, as the case may be.
(b) This Agreement, and the rights of the parties hereunder,
shall be governed by and construed in accordance with the laws of the State of
Delaware.
(c) This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
(d) If any provision of this Agreement shall be declared void
or unenforceable by any court or administrative board of competent jurisdiction,
such provision shall be deemed to have been severed and the remainder of this
Agreement shall continue in all respects to be valid and enforceable.
(e) No waivers of any breach of this Agreement extended by any
party hereto to any other party shall be construed as a waiver of any rights or
remedies with respect to any subsequent breach.
(f) Any notice required to be given or contemplated by this
Agreement shall be deemed delivered upon the actual receipt of such notice at
the addresses set forth below:
(i) If to Xxxxx:
Xxxxxxx X. Xxxxx
c/o Staff Leasing, Inc.
600 000 Xxxx. Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Attn: President
(ii) If to Staff Leasing:
Staff Leasing, Inc.
600 000 Xxxx. Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Attn: President
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
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XXXXXXX X. XXXXX
STAFF LEASING, INC.
By:
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Title:
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[SEAL]
Attest:
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Title:
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