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.
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 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:
"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 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
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.
[signatures on next page]
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:
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By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Secretary and General Counsel
