EXHIBIT 4.4
NON-QUALIFIED STOCK OPTION AGREEMENT
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THIS STOCK OPTION AGREEMENT (the "Agreement") entered into as of this 24th
day of August, 2001, between SFBC International, Inc. (the "Company") and Xxxxx
Xxxxxx the "Employee"), an employee of the Company.
WHEREAS, the Employee has acquired certain unvested stock options (the
"Options") from Xxxxx Xxxx ("Xxxx") pursuant to an agreement with Xxxx which
Options were not issued under the Company's 1999 Stock Option Plan; and
WHEREAS, under the terms of that agreement the Employee is required to
enter into a stock option agreement containing similar vesting terms to that
which Xxxx had with the Company.
NOW THEREFORE, in consideration of the mutual covenants and promises
hereafter set forth and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereto agree as follows:
1. Acknowledgement of Options. The Company acknowledges that the Employee
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holds 62,500 Options, 32,500 exercisable at $6.00 per share and 30,000 at $7.50
per share, each Option to purchase one share of common stock.
2. Vesting-When Exercisable.
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(a) The Options shall vest over three years in five equal increments on
June 30 and December 31 of each year beginning December 31, 2001, as long as the
Employee remains employed on each applicable vesting date. In lieu of fractional
vesting, the number of Options shall be rounded up each time until fractional
Options are eliminated.
The vesting date of all Options shall accelerate in the event of any of the
following: (i) the Company is to merge or consolidate with or into any other
corporation or entity except a transaction where the Company is the surviving
corporation or a change of domicile merger or similar transaction exempt from
registration under the Securities Act of 1933, (ii) the sale of all or
substantially all of the Company's assets, (iii) the sale of at least 90% of the
outstanding common stock of the Company to a third party (subsections (i), (ii)
and (iii) collectively referred to as an "Acquisition"); or (iv) the Company is
dissolved. Upon a minimum of 20 days prior written notice to the Employee, the
exercisability of such Options shall commence two business days prior to the
earlier of (A) the scheduled closing of an Acquisition or proposed dissolution
or (B) the actual closing of an Acquisition or proposed dissolution.
(b) Subject to Sections 2(c) and 3 of this Agreement, Options may be
exercised prior to vesting and remain exercisable through January 16, 2011.
(c) However, notwithstanding any other provision of this Agreement, all
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Options, whether vested or unvested shall be immediately forfeited in the event
of:
(1) Termination of employment for any reason including without
cause and including, but not limited to, fraud, theft, employee dishonesty and
violation of Company policy;
(2) Purchasing or selling securities of the Company without written
authorization in accordance with the Company's inside information guidelines
then in effect;
(3) Breaching any duty of confidentiality including that required
by the Company's inside information guidelines then in effect;
(4) Competing with the Company;
(5) Being unavailable for consultation after leaving the Company's
employ if such availability is a condition of any agreement between the Company
and the Employee;
(6) Recruitment of Company personnel after termination of
employment, whether such termination is voluntary or for cause;
(7) Failure to assign any invention or technology to the Company if
such assignment is a condition of employment or any other agreements between the
Company and the Employee; or
(8) A finding by the Company's Board that the Employee has acted
against the interests of the Company.
3. Termination of Relationship.
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(a) If for any reason, except death or disability as provided below,
the Employee ceases to act as an employee of the Company, all rights granted
hereunder shall terminate effective three months from the date the Employee
ceases to act as an employee, except as otherwise provided for herein.
(b) If the Employee shall die while an employee of the Company, his
estate or any Transferee, as defined herein, shall have the right within one
year from the date of the Employee's death to exercise the Employee's vested
Options subject to Section 2(c). For the purpose of this Agreement, "Transferee"
shall mean a person to whom such shares are transferred by will or by the laws
of descent and distribution.
(c) No transfer of the Options by the Employee by will or by the laws
of descent and distribution shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and a copy of the
letters testamentary or such other evidence as the Board may deem necessary to
establish the authority of the state and the acceptance by the Transferee or
Transferees of the terms and conditions of the Options.
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(d) If the Employee becomes disabled while employed by the Company
within the meaning of Section 22(e)(3) of the Code, the three month period
referred to in Section 4(a) of this Agreement shall be extended to one year.
4. Profits on the Sale of Certain Shares; Redemption. If any of the events
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specified in Section 2(c) of this Agreement occur within one year from the last
date of employment (the "Termination Date") (or such longer period required by
any written employment agreement), all profits earned from the 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 Employee 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
4 do not lapse one year from the Termination Date but are a contract right
subject to any appropriate statutory limitation period.
5. 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.
(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.
6. Sale of Shares Acquired Upon Exercise of Options. Any shares of the
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Company's common stock acquired pursuant to Options granted hereunder cannot be
sold by the Employee until at least one year elapses from the date of exercise,
unless a registration statement covering the sale of the common stock is in
effect.
7. Adjustments. Upon the occurrence of any of the following events, the
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Employee'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 Employee and the Company relating to such Options:
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(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 Employee 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 Employee 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 Employee 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 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 Employee nor his/her
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estate, as provided in Section 3(c), 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.
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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 Employee at any time, with or without cause. The termination
of the relationship of the Employee by the Company, regardless of the reason
therefor, shall have the results provided for in Sections 3 and 4 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 Employee, 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 of
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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. 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.
13. 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. The decision and award made by the
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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.
14. 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.
15. 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 Employee: Xx. Xxxxx Xxxxxx
c/o SFBC International, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile (000) 000-0000
The Company: SFBC International, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx, P.A.
0000 Xxxx Xxxxx Xxxxx Xxxx., Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
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 evidence of successful facsimile delivery. Time shall
be counted to, or from, as the case may be, the delivery in person or by
mailing.
16. 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.
17. 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.
18. 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,
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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.
19. 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.
20. 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.
21. 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 hand and seals the day
and year first above written.
WITNESSES: SFBC INTERNATIONAL, INC.
_______________________________ By:/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, President
EMPLOYEE
______________________________ By:/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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