Exhibit 4.5
THIRD SUPPLEMENTAL INDENTURE
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THIRD SUPPLEMENTAL INDENTURE, dated as of November 14, 1996 (the
"Third Supplemental Indenture"), to the INDENTURE (as defined below), among
Career Horizons, Inc., a Delaware corporation (the "Company"), AccuStaff
Incorporated, a Florida corporation ("AccuStaff"), the Guarantors (as defined in
the Indenture) and The Chase Manhattan Bank (formerly known as Chemical Bank), a
New York banking corporation, as Trustee (the "Trustee").
W I T N E S S E T H
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WHEREAS, the Company has issued 7% Convertible Senior Notes Due 2002
(the "Securities") in the aggregate principal amount of $86,250,000 under and
pursuant to the Indenture, dated as of October 19, 1995, between the Company and
the Trustee, as amended and supplemented by all Supplemental Indentures thereto
as of the date hereof (the "Indenture"); and
WHEREAS, the Company, AccuStaff and Sunrise Merger Corporation, a
Delaware corporation and wholly owned subsidiary of AccuStaff ("Newco"), have
entered into an Agreement and Plan of Merger, dated as of August 25, 1996,
pursuant to which, at the close of business on the date hereof, (a) Newco will
merge with and into the Company and (b) the shares of common stock, par value
$.01 per share, of the Company ("Company Common Stock") will be converted into
the right to receive shares of common stock, par value $.01 per share, of
AccuStaff ("AccuStaff Common Stock") at the rate of 1.53 shares of AccuStaff
Common Stock per share of Company Common Stock (the "Merger"); and
WHEREAS, Section 5.13 of the Indenture provides that, among other
things, if there shall occur any consolidation or merger to which the Company is
a party (other than a merger in which the Company is the continuing corporation
and which does not result in any reclassification of, or change in, outstanding
shares of Company Common Stock), then the Company and the corporation whose
securities are receivable by a holder of Company Common Stock pursuant to the
consolidation or merger shall, as a condition precedent to such consolidation or
merger, execute and deliver to the Trustee a supplemental indenture in form
satisfactory to the Trustee providing that the holder of each Security then
outstanding shall have the right to convert such Security into the kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such consolidation or merger by a holder of the number of shares
of Company Common Stock deliverable upon conversion of such Security immediately
prior to such consolidation or merger; and
WHEREAS, Section 10.01(b) of the Indenture provides that the Company
and the Trustee may amend and supplement the Indenture without the consent of
any holder of Securities to comply with Section 5.13 of the Indenture; and
WHEREAS, the Company has entered into a Registration Agreement, dated
October 16, 1995 (the "Registration Agreement"), between the Company and Salomon
Brothers Inc as Representative of the Initial Purchasers (as defined in the
Registration Agreement) with respect to registration of the Securities and the
shares of Company Common Stock issuable upon conversion of the Securities; and
WHEREAS, AccuStaff desires to provide for the guarantee by it of the
Securities; and
WHEREAS, Section 10.01(f) of the Indenture provides that the Company
and the Trustee may amend and supplement the Indenture without the consent of
any Noteholder (as defined in the Indenture) to make any change that provides
any additional rights or benefits to the holders of Securities; and
WHEREAS, as required by Section 6.1(d) of the Indenture, no Default or
Event of Default (as such terms are defined in the Indenture) exists; and
WHEREAS, the Company has delivered to the Trustee, pursuant to Section
6.1 of the Indenture, an Officers' Certificate, substantially in the form
annexed hereto as Exhibit A and an Opinion of Counsel, substantially in the form
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annexed hereto as Exhibit B, each stating that the Merger and this Third
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Supplemental Indenture comply with the Indenture and that all conditions
precedent in the Indenture relating to the Merger have been satisfied; and
WHEREAS, AccuStaff has delivered to the Trustee an Opinion of
Counsel, substantially in the form annexed hereto as Exhibit C, with respect to
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the execution and delivery by AccuStaff of this Third Supplemental Indenture;
and
WHEREAS, AccuStaff, pursuant to Section 5.11 of the Indenture, shall
mail promptly to holders of the Securities a notice of the adjustment in
Conversion Price (as defined in the Indenture), substantially in the form
attached hereto as Exhibit D, and shall file with the Trustee an Officers'
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Certificate briefly stating the facts requiring the adjustment in Conversion
Price and the manner of computing such adjustment, substantially in the form
annexed hereto as Exhibit E.
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NOW, THEREFORE, in consideration of the premises set forth herein, the
parties hereto do hereby mutually convenant and agree as follows:
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ARTICLE I.
AUTHORIZATION; DEFINITIONS
Section 1.01. Third Supplemental Indenture. This Third Supplemental
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Indenture is supplemental to, and is entered into in accordance with, Sections
5.13, 10.01(b) and 10.01(f) of the Indenture, and except as modified, amended
and supplemented by the Supplemental Indentures thereto and this Third
Supplemental Indenture, the provisions of the Indenture are in all respects
ratified and confirmed and shall remain in full force and effect.
Section 1.02. Definitions. Except as expressly provided in Section
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2.01 of this Third Supplemental Indenture below and unless the context shall
otherwise require, all terms which are defined in Section 1.01 of the Indenture
shall have the same meanings, respectively, in this Third Supplemental Indenture
as such terms are given in said Section 1.01 of the Indenture.
ARTICLE II.
AMENDMENTS TO THE INDENTURE
Section 2.01. Amendments to Section 1.01 of the Indenture. (a) Section
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1.01 of the Indenture is hereby amended by inserting the following definitions:
"AccuStaff" means AccuStaff Incorporated, a Florida corporation, or
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its successors.
"Parent" means AccuStaff.
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(b) Section 1.01 of the Indenture is hereby amended by replacing the
definition of "Common Stock" with the following definition:
"Common Stock" or "Common Stock of the Company" means the common stock
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of the Company as the same exists at the date of the execution of this
Indenture or as such stock may be constituted from time to time;
provided, however, that, for purposes of Article V and Sections 3.03,
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3.05 and 10.02(h) of the Indenture, "Common Stock" or "Common Stock of
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the Company" means the common stock, par value $.01 per share, of
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AccuStaff as the same exists at the date of the execution of this
Third Supplemental Indenture or as such stock may be constituted from
time to time.
(c) Section 1.01 of the Indenture is hereby amended by replacing the
definition of "Company" with the following definition:
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"Company" means the party named as such above until a successor
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replaces it in accordance with Article VI and thereafter means the
successor; provided, however, that, for purposes of Article V of the
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Indenture and terms defined in Section 1.01 of the Indenture when used
in Article V, "Company" means AccuStaff; provided, further, however,
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that for purposes of line 8 of Section 5.01 of the Indenture,
"Company" shall mean the party named as such above until a successor
replaces it in accordance with Article VI and thereafter means the
successor.
Section 2.02. Amendment to Section 4.02 of the Indenture. Section 4.02
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of the Indenture is hereby amended by deleting the period at the end of the last
sentence of such section and replacing it with the following:
; provided, however, that the quarterly and annual financial
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information of AccuStaff, or any successor to AccuStaff, required to
be contained in a filing with the SEC on Forms 10-Q and 10-K may be
provided to the Trustee and to the holders of Securities pursuant to
this Section 4.02, and such provision will satisfy the requirements of
this Section 4.02.
Section 2.03. Amendment to Section 11.10 of the Indenture. Section
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11.10 of the Indenture is hereby amended by replacing the last two paragraphs of
such section with the following:
The Company's address for purposes of the Indenture is:
Career Horizons, Inc.
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
The address for any of the Guarantors for purposes of the Indenture
is:
c/o Career Horizons, Inc.
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
The address for AccuStaff for purposes of the Indenture is:
AccuStaff Incorporated
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Tel: (000) 000-0000
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The address for the Trustee for purposes of the Indenture is:
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trustee Administration Department
Tel: (000) 000-0000
Any of the Company, the Guarantors, AccuStaff or the Trustee may
change its address for purposes of this Indenture by written notice to
the other.
Section 2.04. New Article XIII to the Indenture. the Indenture is
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hereby amended to include a new Article XIII as follows:
ARTICLE THIRTEEN
PARENT GUARANTEE
Section 13.01. Parent Guarantee.
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(a) For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Parent hereby unconditionally
guarantees (such guarantee being a "Parent Guarantee") to each holder of a
Security authenticated and delivered by the Trustee and to the Trustee,
irrespective of the validity and enforceability of this Indenture, the
Securities or the obligations of the Company under this Indenture or the
Securities, that: (i) the principal of, premium, if any, and interest on the
Securities will be paid when due, whether at the maturity or interest payment
date, by acceleration, call for redemption, upon the occurrence of a Designated
Event, purchase or otherwise, and interest on the overdue principal and
interest, if any, of the Securities, if lawful, and all other obligations of the
Company to the Noteholders or the Trustee under this Indenture or the Securities
will be promptly paid or performed, all in accordance with the terms of this
Indenture and the Securities; and (ii) in case of any extension of time of
payment or renewal of any Securities or any of such other obligations, they will
be paid when due or performed in accordance with the terms of the extension or
renewal, whether at maturity, by acceleration, call for redemption, upon the
occurrence of a Designated Event, purchase or otherwise. Failing payment when
due of any amount so guaranteed for whatever reason, Parent shall be obligated
to pay the same before failure to so pay becomes an Event of Default.
(b) Parent agrees that (i) its obligations with regard to
this Parent Guarantee shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the absence of
any action to enforce the same, any delays in obtaining or realizing upon (or
failures to obtain or realize upon) collateral, the recovery of any judgment
against the Company or any Guarantor, any action to enforce the same or any
other circumstances that might otherwise constitute a legal or
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equitable discharge or defense of a guarantor and (ii) this Parent Guarantee
will not be discharged except by complete performance of the obligations
contained in the Securities and this Indenture. Parent hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company or any Guarantor, any right to require a
proceeding first against the Company or any Guarantor or right to require the
prior disposition of the assets of the Company or any Guarantor to meet its
obligations, protest, notice and all demands whatsoever and covenants that this
Parent Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities and this Indenture.
(c) If any Noteholder or the Trustee is required by any
court or otherwise to return to any of the Company, any Guarantor, Parent, or
Trustee, or similar official acting to any of the Company, any Guarantor or
Parent, any amount paid by any of the Company, any Guarantor or Parent to the
Trustee or such Noteholder, this Parent Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Parent agrees that it
will not be entitled to any right of subrogation in relation to the Noteholders
in respect of any obligations guaranteed hereby.
(d) Parent agrees that (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 7.02
notwithstanding any stay, injunction or other prohibition preventing such
acceleration as to the Company or any Guarantor of the obligations guaranteed
hereby, and (ii) in the event of any declaration of acceleration of those
obligations as provided in Section 7.02, those obligations (whether or not due
and payable) will forthwith become due and payable by Parent for the purpose of
this Parent Guarantee.
ARTICLE III.
OTHER AGREEMENTS
Section 3.01. Assumption of Obligations Under Registration Agreement.
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AccuStaff hereby assumes, and covenants and agrees, jointly and severally with
the Company, to perform or cause to be performed each and every obligation of
the Company under the Registration Agreement as if it were an original party
thereto.
ARTICLE IV.
MISCELLANEOUS
Section 4.01. Effective Date. This Third Supplemental Indenture shall
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become effective upon execution and delivery hereof.
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Section 4.02. Counterparts. This Third Supplemental Indenture may be
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executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
Section 4.03. Acceptance. The Trustee accepts the Indenture, as
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supplemented by this Third Supplemental Indenture, and agrees to perform the
same upon the terms and conditions set forth therein as so supplemented. The
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of this Third Supplemental Indenture or the due
execution hereof by the Company, and Guarantor or AccuStaff or for or in respect
of the recitals contained herein, all of which are made by the Company and
AccuStaff solely.
Section 4.04. Successors and Assigns. All covenants and agreements in
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this Third Supplemental Indenture by the Company, the Guarantors, AccuStaff or
the Trustee shall bind its respective successors and assigns, whether so
expressed or not.
Section 4.05. Severability. In case any provision in this Third
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Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 4.06. Governing Law. This Third Supplemental Indenture shall
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be governed by and construed in accordance with the internal laws of the State
of New York, without regard to conflicts of laws provisions thereof.
Section 4.07. Incorporation into Indenture. All provisions of this
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Third Supplemental Indenture shall be deemed to be incorporated in, and made a
part of, the Indenture; and the Indenture, as amended and supplemented by the
Supplemental Indentures thereto prior to the date hereof and this Third
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be signed and executed as of the day and year first
written above.
CAREER HORIZONS, INC.
/s/ Xxxxxxx X. Xxxxxxxx
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By: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and
Treasurer
(signature continued on next page)
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ACCUSTAFF INCORPORATED
/s/ Xxxxx X. Xxxxx
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By:
Title:
THE GUARANTORS:
AMERICAN COMPUTER PROFESSIONALS, INC.
XXXXXX IT CO.
CAREER HORIZONS GOVERNMENT SERVICES, INC.
CENTURY TEMPORARY SERVICES, INC.
CH PAYROLL SERVICES, INC.
CHI FINANCIAL SERVICES, INC.
CHI SERVICES, INC.
CHI TEMPORARY SERVICES, INC.
CONTEMPORARY GRAPHICS GROUP, INC.
CONTRACT STAFFING GROUP, INC.
DIAL A TEMPORARY, INC.
EIM ASSOCIATES, INC.
HEALTH FORCE, INC.
HEALTH FORCE OPERATING CORP.
LEGAL SUPPORT PERSONNEL, INC.
MEDI-FORCE, INC.
PL SERVICES, INC.
POTOMAC PERSONNEL SERVICES, INC.
PROFESSIONALS FOR COMPUTING, INC.
PROGRAMMING ENTERPRISES, INC.
STAFF-ADDITIONS INC.
STAFFING RESOURCES (SC), INC.
TEMP FORCE, INC.
TEMPORARIES INCORPORATED
TEMPS & CO. SERVICES, INC.
TEMPS & CO. FRANCHISING, INC.
THE ORIGINAL TEMPO HEALTHPOWER, INC.
THE XXXXXXX XXXXXXX GROUP, INC.
TSG PROFESSIONAL SERVICES, INC.
ZEITECH INC.
/s/ Xxxxxxx X. Xxxxxxxx
______________________________
All By: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
(signatures continue on next page)
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THE CHASE MANHATTAN BANK, AS TRUSTEE
/s/ Xxxxxx X. Deck
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By: XXXXXX X. DECK
Title: Senior Trust Officer
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