AMENDMENT NO. 2 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 is entered into as of the 25th day of February, 1997,
by and among INTERIM SERVICES INC., a Delaware corporation (the "Company"), and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., a New York limited liability company
("Chase" or the "Rights Agent").
R E C I T A L S:
A. The Company and Boatmen's Trust Company entered into that certain Rights
Agreement dated March 17, 1994, whereby the Company appointed Boatmen's as the
Rights Agent to act as agent for the Company and the holders of the Rights in
accordance with the terms and conditions of said Rights Agreement.
B. The Company, Boatmen's Trust Company and Chase entered into that certain
Amendment No. 1 to Rights Agreement dated June 26, 1996 whereby the Company
removed Boatmen's as Rights Agent and appointed Chase as Successor Rights Agent
in accordance with the terms and conditions of said Rights Agreement.
C. The Company now wishes to amend certain additional provisions of the
Rights Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein and in the Rights Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Rights Agent hereby agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended (i) by deleting
the words "prior written approval of a majority of the Board of Directors" in
the fourth and fifth lines of such Section and substituting in place thereof the
words "Prior Written Approval of the Company", (ii) by adding the words "without
the Prior Written Approval of the Company" after the words "of the Company" in
the second to the last line of such Section, and (iii) by adding the following
sentence at the end of such Section:
"Any Person who or which, together with all Affiliates and
Associates of such Person, inadvertently becomes the Beneficial Owner
of securities of the Company representing 15% or more of Voting Power
of the Company or otherwise becomes a Beneficial Owner without a plan
or intention to acquire control of the Company, shall not become an
"Acquiring Person" so long as such Person, individually or together
with the Affiliates and Associates of such Person, promptly enters
into, and delivers to the Company, an irrevocable commitment to
promptly divest, and thereafter promptly divests (without exercising
or retaining any power, including voting, with respect to such
securities), sufficient securities of the Company so that such Person,
together with all Affiliates and Associates of such Person, ceases to
be the Beneficial Owner of 15% or more of the Voting Power of the
Company.
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2. Section 1(c)(i) is hereby amended by adding the following phrase at the
end of such Section:
", as determined pursuant to Rule 13d-3 of the General Rules and
Regulations under the Exchange Act as in effect on the date hereof".
3. Section 1(c) is hereby amended by adding the following new Section
1(c)(iv):
"Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, the phrase "then outstanding", when used
with reference to a Person's Beneficial Ownership of securities of the
Company, shall mean the number of such securities then issued and
outstanding together with the number of such securities not then
actually issued and outstanding which such Person would be deemed to
own beneficially hereunder.
4. Section 1 of the Rights Agreement is hereby amended by deleting
Subsection (h), relettering Subsection (i) as Subsection (h), and adding the
following new Subsection (i):
"Prior Written Approval of the Company" shall mean prior express
written consent of the Company to the actions in question, executed on
behalf of the Company by a duly authorized officer of the Company
following the express approval by action of at least a majority of the
members of the Board of Directors then in office.
5. Section 1(l) of the Rights Agreement is hereby amended by (i) deleting
the words "any corporation or other entity" in the first and second lines of
said Section and substituting in place thereof the words "with respect to any
Person, any other Person", and (ii) by deleting the words "another corporation
or other entity and shall include Subsidiaries of Subsidiaries" in the sixth and
seventh lines of said Section and substituting in place thereof the words "such
Person or one or more of such Person's Subsidiaries".
6. Section 3(a) of the Rights Agreement is hereby amended (i) by deleting
the parenthetical language in the third and fourth lines of said Section and
substituting in place thereof the following: "(or such later date as may be
determined by action of the Board of Directors, but in no event later than the
date set forth in clause (i) above)", and (ii) by deleting the words "prior
written approval of a majority of the Board of Directors" in the thirteenth and
fourteenth lines of such Section and substituting in place thereof "Prior
Written Approval of the Company".
7. Section 3(c) of the Rights Agreement is hereby amended by inserting the
words "as it may from time to time be supplemented or amended" after the
parenthetical in the seventh line of such legend.
8. Section 5(a) of the Rights Agreement is hereby amended by deleting the
word "manually" in the eighth line of such Section, and inserting the words
"manually or by
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facsimile signature" after the word "countersigned" in the eighth line of
such Section.
9. Section 7(c) of the Rights Agreement is hereby amended by inserting the
words "or the Rights Agent" after the words "of the Company" in the ninth line
of such Section.
10. Section 7(e) of the Rights Agreement is hereby amended (i) by inserting
a comma after the words "Section 11(b)" in the sixth line of such Section, (ii)
by deleting the word "and" in the sixth line of such Section, (iii) by inserting
the words "and Section 24" after the words "Section 13(a)" in the seventh line
of said Section, and (iv) by inserting the following at the end of such Section
", or to receive any Common Stock in exchange therefor pursuant to the
provisions of Section 24 hereof."
11. Section 11(b) of the Rights Agreement is hereby amended (i) by deleting
the parenthetical language in the second through ninth lines of such Section,
(ii) by inserting the words "and Section 24" after the words "Section 7(e)" in
the eleventh line of such Section, and (iii) by deleting the words "for a period
of sixty days" in the eleventh and twelfth lines of such Section.
12. Section 11(q) of the Rights Agreement is hereby amended by inserting
the words "or exchanged pursuant to Section 24 hereof" after the word "hereof"
in the fourth line of such Section.
13. Section 11(r) of the Rights Agreement is hereby amended by inserting
the words "and 24" after the words "Section 23" in the third line of such
Section.
14. Section 12 of the Rights Agreement is hereby amended by deleting the
numeral "25" in the third from the last line of such Section and substituting in
place thereof the numeral "26".
15. Section 13(c) of the Rights Agreement is hereby amended by inserting
the following after the word "unless" in the second line of such Section:
"the Principal Party shall have a sufficient number of shares of
its authorized Common Stock which have not been issued or reserved for
issuance to permit the exercise in full of the Rights in accordance
with this Section 13, and unless".
16. Section 13 of the Rights Agreement is hereby amended by deleting
Subsection (d) of such Section.
17. Section 17 of the Rights Agreement is hereby amended by deleting the
numeral "24" in the fourth line from the bottom of such Section and substituting
in place thereof the numeral "25".
18. Section 21 of the Rights Agreement is hereby amended by deleting the
comma after the word "days" in the fourth line of such Section.
19. Section 22 of the Rights Agreement is hereby amended by adding the
following new paragraph at the end of such Section:
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"In addition, in connection with the issuance or sale of Common
Stock following the Distribution Date and prior to the redemption,
exchange or expiration of the Rights, the Company (a) shall with
respect to shares of Common Stock so issued or sold pursuant to the
exercise of stock options or under any employee benefit plan or
arrangement, or upon the exercise, conversion or exchange of
securities hereinafter issued by the Company, and (b) may, in any
other case, if deemed necessary or appropriate by the Board of
Directors of the Company, issue Rights Certificates representing the
appropriate number of Rights in connection with such issuance or sale;
provided, however, that (i) no such Rights Certificates shall be
issued if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of material
adverse tax consequences to the Company or the Person to whom such
Rights Certificates would be issued and (ii) no Rights Certificates
shall be issued if, and to the extent that, appropriate adjustment
shall otherwise have been made in lieu of the issuance thereof.
20. Section 23 of the Rights Agreement is hereby amended by deleting the
last sentence of Subsection (a) and all of Subsection (b) of such Section and
then adding the following at the end of Subsection (a):
"The redemption of the Rights by the Board of Directors may be
made effective at such time, on such basis and with such conditions as
the Board of Directors in its sole discretion may establish."
21. Section 23 of the Rights Agreement is hereby amended by relettering
Subparagraphs (c) and (d) as Subparagraphs (b) and (c), respectively.
22. Section 23(c) (new Section 23(b)) of the Rights Agreement is hereby
amended (i) by inserting the words "or, when appropriate, immediately upon the
time or satisfaction of such conditions as the Board of Directors may have
established," after the word "Agent" in the fourth line of such Section, and
(ii) by inserting the words "the Rights Agent or, prior to the Distribution
Date, on the registry books of" after the word "books of" in the fifth line from
the bottom of such Section.
23. Section 23(d) (new Section 23(c)) of the Rights Agreement is hereby
amended by inserting the words "and Section 24 hereof" after the words "Section
23" in the fourth line of such Section.
24. Section 25 of the Rights Agreement is hereby amended (i) by inserting
the words "at any time after the Distribution Date" after the words "shall
propose" in the
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second line of the first full paragraph of such Section, (ii) by deleting the
numeral "25" in the twenty-seventh line of the first full paragraph of such
Section and substituting in place thereof the numeral "26", (iii) by deleting
the numeral "24" in the third line from the bottom of the first full paragraph
of such Section and substituting in place thereof the numeral "25", and (iv) by
deleting the numeral "25" in the fifth line of the second full paragraph of such
Section and substituting in place thereof the numeral "26".
25. Section 27 of the Rights Agreement is hereby amended by deleting
Section 27 and substituting in place thereof the following:
"Section 27. Supplements and Amendments. The Company may from
time to time supplement or amend this Agreement without the approval
of any holders of Right Certificates in order (a) to cure any
ambiguity, (b) to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions
herein, (c) to shorten or lengthen any time period hereunder
(including without limitation to extend the Final Expiration Date),
(d) increase or decrease the Purchase Price, or (e) to change or
supplement the provisions hereunder in any manner which the Company
may deem necessary or desirable which shall not adversely affect the
interests of the holders of Right Certificates (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring Person);
provided, however, that from and after such time as any Person becomes
an Acquiring person, this Agreement shall not be amended in any manner
which would adversely affect the interests of the holders of Rights;
provided further that this Agreement may not be supplemented or
amended to lengthen pursuant to clause (c) of this sentence, (A) the
time period relating to the when the Rights may be redeemed at such
time as the Rights are not then redeemable, or (B) any other time
period unless such lengthening is for the purpose of protecting,
enhancing or clarifying the rights of, and/or the benefits to, the
holders of the rights; provided further that the Company shall have
the right to make any changes unilaterally necessary to facilitate the
appointment of a successor Rights agent, which such changes shall be
set forth in a writing by the Company or by the Company and such
successor Rights Agent. Without limiting the foregoing, the Company
may at any time prior to such time as any Person becomes an Acquiring
Person amend this Agreement to lower the threshold set forth in
Section 1(a) hereof from 15% to not less than the greater of (i) any
percentage greater than the largest percentage of the Voting Power of
the Company then known by the Company to be beneficially owned by any
Person (other than the Company, any Subsidiary of the Company, or any
employee benefit plan or compensation arrangement of the Company or
any Subsidiary of the Company, and any entity holding securities of
the Company to the extent organized, appointed or established by the
Company or any such Subsidiary for or pursuant to the terms of any
such employee benefit plan or compensation arrangement) together with
all Affiliates or
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Associates of such Person and (ii) 10%. Upon the delivery of a
certificate from an appropriate officer of the Company which states
that the proposed supplement or amendment is in compliance with the
terms of this Section 27, the Rights Agent shall execute such
supplement or amendment.
In all other respects, except as herein stated, the Rights Agreement shall
remain in full force and effect.
This Amendment No. 2 may be executed in any number of counterparts, each of
which shall constitute an original, which such counterparts shall together
constitute but one and the same instrument. Terms not defined herein shall,
unless the context otherwise requires, have the meanings assigned to such terms
in the Rights Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
Rights Agreement to be duly executed, effective as of the date first above
written.
INTERIM SERVICES INC. CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By: By:
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Xxxx X. Xxxxx
Secretary and General Counsel
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