As filed with the Securities and Exchange Commission on August 11, 1995
Registration No. 33-_____
Securities and Exchange Commission
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OLSTEN CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 13-2610512
(State of other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation
or organization)
175 Broad Hollow Road
Melville, New York 11747
(516) 832-8200
(Address, including zip code, and telephone number,
including area code of registrant's
principal executive officers)
IMI SYSTEMS, INC.
INCENTIVE STOCK OPTION PLAN
and
DIRECTORS' STOCK OPTION PLANS
(Full title of the plans)
William P. Costantini, Esq.
Senior Vice President and General Counsel
Olsten Corporation
175 Broad Hollow Road, Melville, New York 11747
(Name and address of agent for service)
(516) 844-7250
(Telephone number, including area code, of agent for service)
Copy to:
Marjorie Sybul Adams, Esq.
114 West 47th Street
New York, New York 10036
(212) 626-0861
Exhibit Index is on page 9
Page 1 of 9 Pages
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Each Proposed Proposed Amount of Amount of
Class of Securities Maximum Maximum Aggregate Registra-
to be Registered Amount to be Offering Price Offering tion Fee
Registered Per Unit Price
- ------------------- -------------- -------------- ------------ ----------
<S> <C> <C> <C> <C>
Class B Common Stock, 17,995 -- $92,550<FN2> $100.00
par value $.10 Shares <FN1>
Common Stock, 17,995 Shares N.A. N.A. N.A.
par value $.10
<FN>
<FN1> The amount being registered is the aggregate amount of shares available
for issuance under the Plans. If there is any change in the number of shares by
reason of a stock dividend, stock split, recapitalization, reorganization or
similar transaction, appropriate adjustments will be made in the number of
shares subject to outstanding options to maintain the option holders'
proportionate interests pursuant to the provisions of the aforementioned Plans.
</FN>
<FN>
<FN2> Pursuant to Rule 457(h) under the Securities Act of 1933, the aggregate
offering price and the amount of the fee are computed upon the basis of the
maximum aggregate offering price at which the shares subject to outstanding
options may be purchased by the optionees.
</FN>
</TABLE>
<PAGE>
<PAGE>
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Olsten Corporation, a Delaware corporation (the "Company"or "Olsten"),
hereby incorporates by reference in this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the
"Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended January 1, 1995, as amended, filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (File No.
0-3532);
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year covered by the
Annual Report on Form 10-K referred to in (a) above; and
(c) The description of the Company's Class B Stock and Common Stock
contained in the Company's Registration Statement on Form 8-A dated December 5,
1994 (which incorporates by reference the section entitled "Description of
Capital Stock" contained in the Company's Registration Statement on Form S-3
filed on July 6, 1994 (File No. 33-54463)).
In addition, all documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article Ninth of the Registrant's Restated Certificate of
Incorporation provides for indemnification of Directors of the Registrant as
follows:
NINTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which
the director derived an improper personal benefit. This Article NINTH shall
not eliminate or limit the liability of a director for any act or omission
occurring prior to the effective date of its adoption. If the Delaware
General Corporation Law is amended after approval by the stockholders of
this article to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such
repeal or modification.
As authorized by Section 145 of the Delaware General Corporation Law,
Article V of the Registrant's By-Laws provides as follows:
Section 1. Right to Indemnification. Each person who was or is made
a party or is threatened to be made a party to or is otherwise involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he
or she is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as a director or officer or in any
other capacity while serving as a director or officer shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by
the Delaware General Corporation Law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) reasonably incurred or suffered
by such indemnitee in connection therewith and such indemnification shall
continue as to an indemnitee who has ceased to be a director or officer and
shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that the Corporation shall indemnify any
such indemnitee in connection with a proceeding (or part thereof) initiated
by such indemnitee only if such proceeding was authorized by the Board.
Section 2. Right to Advancement of Expenses. This right to
indemnification conferred to in Section 1 of this Article V shall include
the right to be paid by the Corporation the expenses incurred in defending
any proceeding for which such right to indemnification is applicable in
advance of its final disposition (hereinafter an "advancement of
expenses"); provided, however, that, if the Delaware General Corporation
Law requires, an advancement of expenses incurred by an indemnitee in his
or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right
to appeal that such indemnitee is not entitled to be indemnified for such
expenses under this Article V or otherwise.
Section 3. Non-Exclusivity of Rights. The rights to indemnification
and to the advancement of expenses conferred in this Article V shall not
be exclusive of any other right which any person may have or hereafter
acquire under any statute, the Restated Certificate of Incorporation, By-
Law, agreement, vote of stockholders or disinterested directors or
otherwise.
Section 4. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust
or other enterprise against any expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law.
Section 5. Indemnification of Employees and Agents of the Corporation.
The Corporation may, to the extent authorized from time to time by the
Board, grant rights to indemnification and to the advancement of expenses
to any employee or agent of the Corporation or, if serving at the request
of the Corporation, as an employee or agent of another corporation or of
a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan, to the fullest extent of the
provisions of this Article V with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
In addition, the Company maintains directors' and officers' liability
insurance covering certain liabilities that may be incurred by the directors and
officers of the Company in connection with the performance of their duties.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits set forth on the Exhibit Index to this Registration
Statement are incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement to include any material information with respect
to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such
information in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
<PAGE> SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Melville, State of New York, on August 11, 1995.
OLSTEN CORPORATION
By /s/ Frank N. Liguori
Frank N. Liguori,
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Frank N. Liguori, William P. Costantini and
Laurin L. Laderoute, Jr. and each and any one of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitu-
tion, for him and in his name, place and stead, in any and all capacities, to
sign any or all amendments (including post-effective amendments) to this Regis-
tration Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his substi-
tute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
- ------- --------- -------
<S> <C> <C>
/s/ Frank N. Liguori Chairman and Chief August 11, 1995
Executive Officer
and Director
/s/ Anthony J. Puglisi Senior Vice President- August 11, 1995
Finance
(Principal Financial and
Accounting Officer)
/s/ Stuart Olsten Director August 11, 1995
/s/ Andrew N. Heine Director August 11, 1995
___________________ Director August 11, 1995
(Stuart R. Levine)
/s/ John M. May Director August 11, 1995
/s/ Miriam Olsten Director August 11, 1995
/s/ Richard A. Sharoff Director August 11, 1995
/s/ Raymond S. Troubh Director August 11, 1995
/s/ Josh S. Weston Director August 11, 1995
</TABLE>
<PAGE>
<TABLE>
EXHIBIT INDEX
<CAPTION>
Exhibit
Number Exhibit Page
- ------- ------- ----
<S> <C> <C>
4.1 Restated Certificate of Incorporation
of Registrant, as amended.
4.2 By-Laws of Registrant (incorporated herein
by reference to Exhibit 3(b) to Registrant's
Annual Report on Form 10-K for the fiscal
year ended January 2, 1994).
4.3 IMI Incentive Stock Option Plan
4.4 Form of Directors' Stock Option Plan
5 Opinion of Gordon Altman Butowsky Weitzen
Shalov & Wein.
24.1 Consent of Coopers & Lybrand L.L.P.
24.2 Consent of Gordon Altman Butowsky Weitzen
Shalov & Wein (included in Exhibit 5).
25 Powers of Attorney (contained on the
signature pages of this Registration Statement).
</TABLE>
EXHIBIT 4.1
STATE OF DELAWARE
SECRETARY OF STATE
DIVISIONS OF CORPORATIONS
FILED 10:10 AM 04/28/1995
950094074 - 669524
CERTIFICATE OF AMENDMENT
OF RESTATED CERTIFICATE OF INCORPORATION
OF
THE OLSTEN CORPORATION
Pursuant to Section 242 of the General Corporation Law of the
State of Delaware
The Olsten Corporation, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify as follows:
FIRST: That the Certificate of Incorporation of the Corporation
was filed with the Secretary of State on behalf of the Corporation (formerly
known as Olsten's Temporary Personnel, Inc.) on December 28, 1967,
amendments to the Certificate of Incorporation were filed with the Secretary
of State on August 1, 1968, June 21, 1971, June 29, 1978, May 12, 1982,
and May 15, 1986, a Restated Certificate of Incorporation was filed with the
Secretary of State on May 26, 1987, and a Certificate of Merger of Lifetime
Corporation into the Corporation was filed with the Secretary of State on
July 30, 1993.
SECOND: That the Board of Directors of the Corporation at a
meeting of the Board of Directors adopted a resolution proposing and
declaring it advisable to amend the Restated Certificate of Incorporation of
the Corporation to replace Section C(2) of Article Fourth as described below.
THIRD: That said amendment has been approved and authorized at
a duly noticed meeting by the required percentage of the issued and
outstanding stock entitled to vote in accordance with Sections 222 and 242
of the General Corporation Law of the State of Delaware.
FOURTH: That in connection with the foregoing, the Restated
Certificate of Incorporation is hereby amended by deleting the name "The
Olsten Corporation" from the Heading and Article First thereto and
substituting therefor the name "Olsten Corporation."
FIFTH: That in connection with the foregoing, Section C(2) of
Article Fourth of the Restated Certificate of Incorporation of the
Corporation is hereby deleted in its entirety and substituted therefor is
the following new Section C (2) of Article Fourth:
"C. Common Stock and Class B Common Stock
-------------------------------------
(2) Voting Powers
-------------
(a) In all matters, with respect to both actions by vote and by
consent, every holder of Common Stock shall be entitled to one (1) vote in
person or by proxy for each share of Common Stock standing in his name on the
transfer books of the Corporation and every holder of Class B Common Stock
shall be entitled to ten (10) votes in person or by proxy for each share of
Class B Common Stock standing in his name on the transfer books of the
Corporation. If, with respect to any meeting of the stockholders for the
election of directors, any shares of Common Stock are outstanding, then, so
long as such procedure is required for the continued listing for trading of
the Common Stock on the New York Stock Exchange (or, if the Common Stock is
not listed or admitted for trading on such exchange, if required for the
listing or continued listing for trading (or, if the Common Stock is not
listed or admitted for trading) or, if the Common Stock is not listed or
admitted for trading on any national securities exchange, if required for
the quotation on the National Association of Securities Dealers Automated
Quotations National Market System) and so long as the Common Stock is so
listed or quoted: (i) the holders of the Common Stock, voting separately as
a class, will have the right to elect twenty-five percent (25%), rounded up
to the nearest whole number, of the directors to be elected at such meeting
and (ii) the holders of the Class B Common Stock, voting separately as a
class, will have the right to elect seventy-five percent (75%), rounded down
to the nearest whole number, of the directors to be elected at such meeting;
provided, however, that if the holders of any series of Preferred Stock are
generally entitled at such meeting to vote for the election of directors who
would otherwise be elected by holders of the Common Stock and Class B Common
Stock, the number of directors to be elected by holders of the Class B Common
Stock shall be reduced accordingly. Notwithstanding the foregoing, if, as
of the record date for determining the stockholders entitled to vote at a
meeting of the stockholders for the election of directors, and so long as
such procedure is required for the continued listing for trading of the
Common Stock on the New York Stock Exchange (or, if the Common Stock is not
listed or admitted for trading on such exchange, if required for the listing
or continued listing for trading on the principal national securities
exchange on which the Common Stock is listed or admitted for trading or, if
the Common Stock is not listed or admitted for trading on any national
securities exchange, if required for the quotation on the National
Association of Securities Dealers Automated Quotations National Market
System) and so long as the Common Stock is so listed or quoted, the number
of outstanding shares of Class B Common Stock is less than twelve and one-
half percent (12.5%) of the total of (I) the number of outstanding shares of
Common Stock, (II) the number of outstanding shares of Class B Common Stock
and (III) the number of outstanding shares of any other class or series of
capital stock, including, without limitation, Preferred Stock, of the
Corporation, the holders of which are generally entitled to vote for the
election of directors, then, at such meeting of the stockholders, in addition
to the right of the holders of the Common Stock to elect twenty-five percent
(25%) of the directors to be elected at such meeting, voting as a separate
class, the holders of the Common Stock shall be entitled to vote with the
holders of the Class B Common Stock for the election of directors who would
otherwise be elected by the holders of Class B Common Stock, in which
election the holders of the Class B Common Stock shall continue to have
ten (10) votes per share of Class B Common Stock and the holders of the
Common Stock shall continue to have one (1) vote per share of Common Stock.
(b) In the event that the continued listing for trading of the Common
Stock on the New York Stock Exchange or, if the Common Stock is not listed
or admitted for trading on such exchange, the continued listing for trading
on such exchange, the continued listing for trading on the principal
national securities exchange on which the Common Stock is listed or admitted
for trading or, if not listed or admitted for trading on any national
securities exchange, the continued quotation on the National Association of
Securities Dealers Automated Quotations National Market System) no longer
requires twenty-five percent (25%) of the number of directors to be elected
by the holders of the Common Stock in the manner specified in Section C(2)
(a), then such right of the holders of Common Stock to elect twenty-five
percent (25%) of the number of directors shall cease and at all elections of
directors following such change, the Common Stock and the Class B Common
Stock shall vote in the election of directors as one class, with each share
of Common Stock entitled to one (1) vote and each share of Class B Common
Stock entitled to ten (10) votes.
(c) If, with respect to any meeting of the stockholders for the
election of directors, no shares of Common Stock are outstanding, then at
such meeting the holders of the Class B Common Stock, voting as a class,
shall have the right to elect all the directors to be elected at such
meeting other than those directors, if any, to be elected by the holders of
any series of Preferred Stock. Except as set forth above with respect to
the election of directors and except as otherwise required by law, the
holders of the Common Stock and the Class B Common Stock shall vote together
as a single class on all matters."
SIXTH: That this Amendment to the Restated Certificate of
Incorporation of the Corporation was duly adopted in accordance with the
requirements of Section 242 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, The Olsten Corporation has caused this
amendment to be signed by its duly authorized officer this 28th day of
April, 1995.
THE OLSTEN CORPORATION
By:
--------------------------
Its: Senior Vice President
ATTEST:
- ------------------------
Secretary
[SEAL]
<PAGE>
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:26 AM 07/30/1993
932115100 - 669524
CERTIFICATE OF MERGER
OF
LIFETIME CORPORATION
INTO
THE OLSTEN CORPORATION
The undersigned corporation, organized and existing under and by virtue
of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger are as follows:
State of
Name Incorporation
---- -------------
THE OLSTEN CORPORATION Delaware
LIFETIME CORPORATION Delaware
SECOND: That an agreement of merger between the parties to the merger
has been approved, adopted and certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of
subsection (c) of section 251 of the General Corporation Law of the State of
Delaware.
THIRD: That the name of the surviving corporation of the merger is The
Olsten Corporation.
FOURTH: That the Restated Certificate of Incorporation of The Olsten
Corporation shall constitute the Certificate of Incorporation of the
surviving corporation until amended as provided by law except that: (i)
Article FOURTH, Section A of the Restated Certificate of Incorporation of
The Olsten Corporation shall be amended to read as follows:
FOURTH: A. Classes and Number of Shares
The total number of shares of all classes of stock
which the Corporation shall have authority to issue is One
Hundred Sixty Million Two Hundred Fifty Thousand (160,250,000)
of which Two Hundred Fifty Thousand (250,000) shares shall be
preferred stock of the par value of ten cents ($.10) per share
(hereinafter called "Preferred Stock"), One Hundred Ten Million
(110,000,000) shares shall be common stock of the par value of ten
cents ($.10) per share (hereinafter called "Common Stock") and Fifty
Million (50,000,000) shares shall be Class B common stock of the
par value of ten cents ($.10) per share (hereinafter called "Class B
Common Stock").
and (ii) Article Fourth, Section C.(5) of the Restated Certificate of
Incorporation of The Olsten Corporation shall be amended to add a new
subsection (f) which shall read as follows:
FOURTH: C. Common Stock and Class B Common Stock
(f) Notwithstanding the foregoing, in connection
with a merger or consolidation in which shares of Class
B Common Stock are to be issued in exchange for the shares
of a constituent corporation of such merger or consolidation
(including, without limitation, any merger or consolidation
effected contemporaneously with the adoption of this
provision), the Board of Directors may by a resolution
adopted in accordance with the Corporation's By-Laws,
authorize shares of Class B Common Stock to be issued in
connection with such merger or consolidation to be registered
in the name of, and to be held of record by, a broker or dealer
in securities, a bank or voting trustee or a nominee of any
such broker, dealer, bank or voting trustee, or otherwise to
be held of record by a nominee of the beneficial owner of such
shares (all of such shares being herein referred to as held in
"street" or nominee name) for a period ending not later than
thirty (30) days from the effective date of the merger or
consolidation (or if such 30th day is not a business day, the
first business day thereafter) (the "Grace Period"). During the Grace
Period, shares of Class B Common Stock that were issued in connection
with the merger or consolidation and which are held in "street" or
nominee name may be transferred to the beneficial owner of the shares
of Class B Common Stock issued in connection with the merger or
consolidation at the time of issuance, to the nominee of such
beneficial owner or to such beneficial owner's Permitted Transferee.
During the Grace Period, the Corporation may require a holder that
acquired shares of Class B Common Stock in the merger or consolidation
to furnish such affidavits or other proof as it deems necessary to
establish that such holder is the beneficial owner of shares of Class B
Common Stock, and any holder that does not submit satisfactory proof
shall be deemed to hold such shares as a nominee. At the expiration of
the Grace Period, any shares of Class B Common Stock issued in
connection with the merger or consolidation that continue to be held or
be deemed to be held in "street" or nominee name shall immediately,
without further act on anyone's part, be converted into shares of
Common Stock, and any stock certificates formerly representing such
shares of Class B Common Sock shall thereupon and thereafter be deemed
to represent the like number of shares of Common Stock and may be
surrendered for certificates for Common Stock.
FIFTH: That the executed agreement of merger is on file at the
principal place of business of the surviving corporation, which is The
Olsten Building, One Merrick Avenue, Westbury, New York, 11590.
SIXTH: That a copy of the agreement of merger will be furnished by the
surviving corporation, on request and without cost to any stockholder of any
constituent corporation.
THE OLSTEN CORPORATION
a Delaware corporation
By:
----------------------
Frank N. Liguori
Chairman and Chief Executive Officer
Attest:
By:
---------------------------
Laurin L. Laderoute, Jr.
Secretary<PAGE>
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 06/30/1994
944120865 - 669524
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
The Olsten Corporation, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
The present registered agent of the corporation is The Prentice-Hall
Corporation System, Inc. and the present registered office of the corporation
is in the county of Kent.
The Board of Directors of The Olsten Corporation adopted the following
resolution on the 1st day of June, 1994.
Resolved, that the registered office of The Olsten Corporation in the
state of Delaware be and it hereby is changed to Corporation Trust Center,
1209 Orange Street, in the City of Wilmington, County of New Castle, and the
authorization of the present registered agent of this corporation be and the
same is hereby withdrawn, and THE CORPORATION TRUST COMPANY, shall be and is
hereby constituted and appointed the registered agent of this corporation at
the address of its registered office.
IN WITNESS WHEREOF, The Olsten Corporation has caused this statement to be
signed by William P. Costantini, its Senior Vice President and attested by
Laurin L. Laderoute, Jr., its Secretary this 29th day of June, 1994.
By
---------------------------
Senior Vice President
ATTEST:
By ----------------------------
Secretary
<PAGE>
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION Filed
May 26, 1987
OF
THE OLSTEN CORPORATION
* * * * *
(Originally incorporated on December 26, 1967 under the name
Olsten's Temporary Personnel, Inc.)
FIRST: The name of the Corporation is "The Olsten Corporation."
SECOND: The address of the registered office of the Corporation
in the State of Delaware is 229 South State Street, City of Dover, County of
Kent, and the name of its registered agent at that address is The
Prentice Hall Corporation System, Inc.
THIRD: The nature of the business or purposes to be conducted
or promoted is:
To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH: A. Classes and Number of Shares.
----------------------------
The total number of shares of all classes of stock
which the Corporation shall have authority to issue is Fifty Million Two
Hundred Fifty Thousand (50,250,000), of which Two Hundred Fifty Thousand
(250,000) shares shall be Preferred Stock of the par value of ten cents
($.10) per share (hereinafter called "Preferred Stock"), Thirty-Five Million
(35,000,000) shares shall be Common Stock of the par value of ten cents
($.10) per share (hereinafter called "Common Stock"), and Fifteen Million
(15,000,000) shares shall be Class B Common Stock of the par value of ten
cents ($.10) per share (hereinafter called "Class B Common Stock").
B. Preferred Stock.
----------------
(1) Any unissued or treasury shares of the Preferred
Stock may be issued by the Board of Directors from time to time in one or
more series. All shares of Preferred Stock shall be of equal rank and shall
be identical, except in respect of the provisions thereof that may be fixed
by the Board of Directors as hereinafter provided pursuant to authority
which is hereby expressly granted to the Board of Directors; and each share
of a series shall be identical in all respects with the other shares of such
series, except as to the date from which dividends thereon, if any, shall be
cumulative. Before any shares of Preferred Stock of any particular series
shall be issued, the Board of Directors shall fix and determine, and is
hereby expressly empowered (without the vote or consent of the holders of
any class or series of stock) to fix and determine, in the manner provided
by law, the following provisions of the shares of such series so far as not
inconsistent with the provisions of this Article FOURTH applicable to all
series of Preferred Stock:
(a) the distinctive designation of such series and
the number of shares which shall constitute such series, which number may be
increased (except where otherwise provided by the Board of Directors in
creating such series) or decreased (but not below the number of shares
thereof then outstanding) from time to time by action of the Board of
Directors;
(b) the annual rate for dividends, if any, payable
on shares of such series, the conditions upon which, and the dates when,
such dividends shall be payable;
(c) the time or times when, the price or prices at
which and the manner in which shares of such series shall be redeemable;
(d) the obligation, if any, of the Corporation to
maintain a sinking fund for shares of such series;
(e) the amount payable on shares of such series in
the event of any liquidation or dissolution which results in the winding-up
of the affairs of the Corporation;
(f) the full or limited voting power, if any, of
the shares of such series;
(g) the rights, if any, of the holders of shares
of such series to convert such shares into, or exchange such shares for,
shares of any other class or classes or of any other series of the same or
any other class or classes of stock of the Corporation and the price or
prices or the rates of exchange at which such shares shall be convertible or
exchangeable and the adjustments and changes thereof; and
(h) any other preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions of shares of such series not fixed and
determined in this Article FOURTH.
(2) In the event of any dissolution or liquidation
(whether voluntary or involuntary) which results in the winding-up of the
affairs of the Corporation, after payment or provision for payment of the
debts and other liabilities of the Corporation, the holders of each series
of Preferred Stock shall be entitled to receive for every share of their
holdings of such series, out of the net assets of the Corporation, an amount
in cash for each share equal to the amount fixed and determined by the Board
of Directors in the resolution providing for the issue of shares of such
particular series of Preferred Stock before any distribution shall be made
to the holders of the Common Stock or Class B Common Stock. Thereafter, the
holders of any particular series of Preferred Stock may participate in the
remaining net assets of the Corporation to the extent, if any, fixed and
determined by the Board of Directors in the resolution providing for the
issue of shares of such particular series of Preferred Stock. If, upon any
dissolution or liquidation (whether voluntary or involuntary) which results
in the winding-up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of the shares of the
Preferred Stock shall be insufficient to pay in full the preferential amount
payable to the holders of each series of Preferred Stock as aforesaid, then
such assets, or the proceeds thereof, shall be distributed among such
holders ratably in accordance with the respective amounts which would be
payable on such shares if all amounts payable thereon (before any part of
such assets or the proceeds thereof could have been distributed to the
holders of the Common Stock and Class B Common Stock) were paid in full.
For the purposes of this Section (2), the voluntary sale, lease, exchange or
transfer (for cash, shares of stock, securities, or other consideration) of
all or substantially all of its property or assets to, or a consolidation or
merger of the Corporation with, one or more corporations shall not be deemed
to be a liquidation, dissolution or winding-up of the affairs of the
Corporation.
(3) Subject to the limitations prescribed in this
Article FOURTH and any further limitations prescribed in the resolution of
the Board of Directors providing for the issuance of any series of Preferred
Stock, the holders of the Common Stock and Class B Common Stock shall be
entitled to receive, when and as declared by the Board of Directors, out of
the assets of the Corporation which are by law available therefor, dividends
payable either in cash, in property, or in shares of stock.
(4) In the event of any dissolution or liquidation
(whether voluntary or involuntary) which results in the winding-up of the
affairs of the Corporation, the holders of the Common Stock and Class B
Common Stock shall be entitled, after payment or provision for payment of
the debts and other liabilities of the Corporation, and the amounts to which
the holders of the Preferred Stock shall be entitled, to share ratably in
the distribution of the remaining net assets of the Corporation.
(5) Subject to the provisions of this Restated
Certificate of Incorporation and subject to the provisions of the By-Laws of
the Corporation, as from time to time amended, with respect to the closing of
the transfer books and the fixing of a record date for the determination of
stockholders entitled to vote, all holders of Common Stock shall be entitled
to one (1) vote for each share of Common Stock held by them at each meeting
of stockholders, and all holders of Class B Common Stock shall be entitled to
ten (10) votes for each share of Class B Common Stock held by them at each
meeting of stockholders.
The stated dividends on all outstanding shares of
Preferred Stock (including any unpaid dividends, if dividends are
cumulative) shall be declared and paid, or set apart for payment, before any
dividends on the outstanding shares of Common Stock and Class B Common Stock
shall be declared and paid, or set apart for payment, with respect to the
same dividend period. Except as otherwise provided by law or by action of
the Board of Directors in granting voting rights to the shares of any series
of Preferred Stock, the entire voting power for the election of directors and
for all other purposes shall be vested exclusively in the shares of Common
Stock and Class B Common Stock.
C. Common Stock and Class B Common Stock
-------------------------------------
(1) General
-------
The powers, preferences and relative, participating, optional or
other specific rights and the qualifications, limitations or restrictions
hereof, of each class of common stock of the Corporation are as follows:
The shares of authorized Common Stock shall be identical in all
respects and shall have equal rights and privileges. The shares of
authorized Class B Common Stock shall be identical in all respects and shall
have equal rights and privileges. The shares of authorized Common Stock and
authorized Class B Common Stock shall have equal rights and privileges in all
respects, except as otherwise specifically provided for herein.
(2) Voting Powers
-------------
(a) In all matters, with respect to both actions by
vote and by consent, every holder of Common Stock shall be entitled to one
(1) vote in person or by proxy for each share of Common Stock standing in
his name on the transfer books of the Corporation and every holder of Class
B Common Stock shall be entitled to ten (10) votes in person or by proxy for
each share of Class B Common Stock standing in his name on the transfer
books of the Corporation. If, with respect to any meeting of the
stockholders for the election of directors, any shares of Common Stock are
outstanding, then, so long as such procedure is required for the continued
listing for trading of the Common Stock on the American Stock Exchange and
so long as the Common Stock is so listed: (i) the holders of the Common
Stock, voting separately as a class, will have the right to elect
twenty-five percent (25%), rounded up to the nearest whole number, of the
directors to be elected at such meeting; and (ii) the holders of the Class B
Common Stock, voting separately as a class, will have the right to elect
seventy-five percent (75%), rounded down to the nearest whole number, of the
directors to be elected at such meeting, provided, however, that if the
holders of any series of Preferred Stock are generally entitled at such
meeting to vote for the election of directors who would otherwise be elected
by holders of the Common Stock and Class B Common Stock, the number of
directors to be elected by the holders of the Class B Common Stock will be
reduced accordingly. Notwithstanding the foregoing, if, as of the record
date for determining the stockholders entitled to vote at a meeting of the
stockholders for the election of directors, and so long as such procedure is
required for the continued listing for trading of the Common Stock on the
American Stock Exchange and so long as the Common Stock is so listed, the
number of outstanding shares of Class B Common Stock is less than twelve and
one-half percent (12.5%) of the total of (I) the number of outstanding shares
of Common Stock, (II) the number of outstanding shares of Class B Common
Stock and (III) the number of outstanding shares of any other class or
series of capital stock, including, without limitation, Preferred Stock, of
the Corporation, the holders of which are generally entitled to vote for the
election of directors, then, at such meeting of the stockholders, in addition
to the right of the holders of the Common Stock to elect twenty-five percent
(25%) of the directors to be elected at such meeting, voting as a separate
class, the holders of the Common Stock shall be entitled to vote with the
holders of the Class B Common Stock for the election of directors who would
otherwise be elected by the holders of the Class B Common Stock, in which
election the holders of the Class B Common Stock shall continue to have ten
(10) votes per share of Class B Common Stock and the holders of the Common
Stock shall continue to have one (1) vote per share of Common Stock.
(b) In the event that the continued listing for trading
of the Corporation's Common Stock on the American Stock Exchange no longer
requires twenty-five percent (25%) of the number of directors to be elected
by the holders of the Common Stock in the manner specified in Section
C(2)(a), or, in the event the Common Stock is no longer listed on the
American Stock Exchange, then such right of the holders of the Common Stock
to elect twenty-five percent (25%) of the number of directors shall cease and
at all elections of directors following such change, the Common Stock
and Class B Common Stock shall vote in the election of directors as one
class, with each share of Common Stock entitled to one vote and each share
of Class B Common Stock entitled to ten votes.
(c) If, with respect to any meeting of the stockholders
for the election of directors, no shares of Common Stock are outstanding,
then at such meeting the holders of the Class B Common Stock, voting as a
class, will have the right to elect all the directors to be elected at such
meeting other than those directors, if any, to be elected by the holders of
any series of Preferred Stock. Except as set forth above with respect to the
election of directors and except as otherwise required by law, the holders of
the Common Stock and the Class B Common Stock shall vote together as a single
class in all matters.
(3) Dividends and Other Distributions
---------------------------------
Subject to any other provisions of this Restated
Certificate of Corporation, as it may be amended from time to time, holders
of Common Stock and Class B Common Stock shall be entitled to receive such
dividends and other distributions in cash, stock or property of the
Corporation as may be declared thereon by the Board of Directors from time to
time out of assets or funds of the Corporation legally available therefor,
provided, however, that no cash dividend shall be declared and paid on the
Class B Common Stock unless (i) a cash dividend is simultaneously declared
and paid on the Common Stock and (ii) through 1989 the per share amount of
such dividend declared and paid on the Class B Common Stock does not exceed
eighty percent (80%) of the per share amount of the dividend declared and
paid on the Common Stock. For purposes of calculating the cash dividend to
be paid on shares of Common Stock and Class B Common Stock, the amount of the
cash dividend declared and payable on shares of the Common Stock, determined
in accordance with this provision, may be rounded up to the next highest
half-cent or fraction thereof. In the case of dividends or other
distributions payable in stock of the Corporation other than the Preferred
Stock, including distributions pursuant to stock splits or divisions of stock
of the Corporation by way of stock dividends, which occur after the initial
issuance of Class B Common Stock of the Corporation, such distributions or
divisions shall be in the same proportion with respect to each class of
stock, but only shares of Common Stock shall be distributed with respect to
Common Stock and only shares of Class B Common Stock shall be distributed
with respect to Class B Common Stock. The holders of shares of Common Stock
and the holders of the shares of Class B Common Stock shall be entitled to
vote separately as classes on any amendment of this Restated Certificate of
Incorporation to split or combine the shares of either such class if,
pursuant to such stock split or combination, the relationship between the
number of shares of Class B Common Stock and Common Stock outstanding
immediately following such stock split or combination shall not be the same
as the relationship between the number of shares of Class B Common Stock and
Common Stock immediately prior to such stock split.
(4) Conversion Rights
-----------------
(a) Subject to the terms and conditions of this Section
(C)(4), each share of Class B Common Stock shall be convertible at any time
or from time to time at the option of the holder of Class B Common Stock, at
the office of any transfer agent for Class B Common Stock, and at such other
place or places, if any, as the Board of Directors may designate, or if the
Board of Directors shall fail so to designate, at the principal office of the
Corporation (attention of the Secretary), into one (1) fully paid and
nonassessable share of Common Stock. Before any holder of Class B Common
Stock shall be entitled to convert the same into Common Stock, he shall
surrender the certificate or certificates for such Class B Common Stock at
the office of said transfer agent (or other place as provided above), which
certificate or certificates shall be duly endorsed to the Corporation or in
blank or accompanied by proper instruments or transfer to the Corporation
(such endorsements or instruments of transfer to be in form satisfactory to
the Corporation), unless the Corporation shall waive such requirement, and
shall give written notice to the Corporation at said office that he elects
so to convert said Class B Common Stock in accordance with the terms of this
Section C(4), shall state in writing therein the name or names in which he
wishes the certificate or certificates for Common Stock to be issued and
shall comply with such other requirements that the Corporation may reasonably
impose. Every such notice of election to convert shall constitute a contract
between the holder of such Class B Common Stock and the Corporation, whereby
the holder of such Class B Common Stock shall be deemed to subscribe for the
amount of Common Stock which he shall be entitled to receive upon such
conversion, and, in satisfaction of such subscription, to deposit the Class
B Common Stock to be converted and to release the Corporation from all
liability thereunder, and thereby the Corporation shall be deemed to agree
that the surrender of the certificate or certificates therefor and the
extinguishment of liability thereon shall constitute full payment of such
subscription for Common Stock to be issued upon such conversion. The
Corporation will as soon as practicable after such deposit of a certificate
or certificates for Class B Common Stock, accompanied by the written notice
and the statement above prescribed, issue and deliver at the office of said
transfer agent (or other place as provided above) to the person for whose
account such Class B Common Stock was so surrendered, or to his nominee or
nominees, a certificate or certificates for the number of full shares of
Common Stock to which he shall be entitled as aforesaid. Such conversion
shall be deemed to have been made as of the date of such surrender of the
Class B Common Stock to be converted, and the person or persons entitled to
receive the Common Stock issuable upon conversion of such Class B Common
Stock shall be treated for all purposes as the record holder or holders of
such Common Stock on such date.
(b) The issuance of certificates for shares of Common
Stock upon conversion of shares of Class B Common Stock shall be made without
charge for any stamp or other similar tax in respect of such issuance.
However, if any such certificate is to be issued in a name other than that of
the holder of the share or shares of Class B Common Stock converted, the
person or persons requesting the issuance thereof shall pay to the
Corporation the amount of any tax which may be payable in respect of any
transfer involved in such issuance or shall establish to the satisfaction of
the Corporation that such tax has been paid.
(c) The Corporation covenants that it will at all times
reserve and keep available, solely for the purpose of issue upon conversion
of the outstanding shares of Class B Common Stock, such number of shares of
Common Stock as shall be issuable upon the conversion of all such outstanding
shares, provided that nothing contained herein shall be construed to preclude
the Corporation from satisfying its obligations in respect of the conversion
of the outstanding shares of Class B Common Stock by delivery of shares of
Common Stock which are held in the treasury of the Corporation. The
Corporation covenants that all shares of Common Stock which shall be issued
upon conversion of the shares of Class B Common Stock, will, upon issue, be
fully paid and nonassessable and not entitled to any pre-emptive rights. All
shares of Class B Common Stock converted into Common Stock shall be retired
and cancelled.
(d) If (i) the number of outstanding shares of Class B
Common Stock as reflected on the stock transfer books of the Corporation
falls below 5% of the aggregate number of the shares of Class B Common Stock
of the Corporation issued and outstanding upon completion of the
Corporation's first exchange offer pursuant to which the Corporation will
offer shares of Class B Common Stock in exchange for shares of Common Stock
or (ii) the holders of a majority of the outstanding shares of Class B Common
Stock approve the conversion of all of the Class B Common Stock into Common
Stock, then, immediately upon the occurrence of either such event, the
outstanding shares of Class B Common Stock shall be converted into shares of
Common Stock. In the event of such a conversion, certificates formerly
representing outstanding shares of Class B Common Stock shall thereupon and
thereafter be deemed to represent the like number of shares of Common Stock.
(5) Transfer
--------
(a) No person holding shares of Class B Common Stock of
record (hereinafter called a "Class B Holder") may transfer, and the
Corporation shall not register the transfer of, such shares of Class B Common
Stock, whether by sale, assignment, gift, bequest, appointment or otherwise,
except to the Corporation or a "Permitted Transferee." A "Permitted
Transferee" shall mean:
(i) With respect to a Class B Holder who is a natural
person:
(I) The spouse of such Class B Holder;
(II) Any lineal descendant of a parent or
grandparent of either such Class B Holder or such Class
B Holder's spouse, including adopted children, and any
spouse of such lineal descendant (said descendants,
together with the Class B Holder and their spouses,
being hereinafter referred to as "such Class B Holder
family members");
(III) A trust established principally for the
benefit of such Class B Holder, one or more of such
Class B Holder's family members and/or Permitted
Transferees;
(IV) A corporation, the beneficial ownership of
a least two-thirds (66 2/3%) of the outstanding capital
stock of which entitled to vote for the election of
directors is owned by, or a partnership, at least two-
thirds (66 2/3%) of the beneficial ownership of the
partnership interests of which are entitled to
participate in the management of the partnership are
held by, such Class B Holder and/or one or more of such
Class B Holder's Permitted Transferees, provided that if
by reason of any change in the ownership of such stock
or partnership interests, such corporation or
partnership would no longer qualify as a Permitted
Transferee, all shares of Class B Common Stock then
held by such corporation or partnership shall, upon the
election of the Corporation given by written notice to
such corporation or partnership, without further act on
anyone's part, be converted into shares of Common
Stock, effective upon the date of the giving of such
notice, and stock certificates formerly representing
such shares of Class B Common Stock shall thereupon and
thereafter be deemed to represent a like number of
shares of Common Stock;
(V) The executor, administrator or personal
representative of the estate of such Class B Holder;
(VI) An organization established principally by or
identified with the Class B Holder and/or Class B
Holder's family members, contributions to which are
deductible for federal income, estate or gift tax
purposes; and
(VII) An employee stock ownership plan established
for the sole purpose of owning securities of the
Corporation.
(ii) With respect to a Class B Holder holding shares of
Class B Common Stock as trustee pursuant to a trust other than a
Charitable Organization or a trust described in clause (iii) below,
"Permitted Transferee" means (I) any person transferring Class B
Common Stock to such trust and (II) and Permitted Transferee of any
such transferor determined pursuant to clause (i) above.
(iii) With respect to a Class B Holder holding shares of
Class B Common Stock as trustee pursuant to a trust (other than a
Charitable Organization) which was irrevocable on the record date
for determining the persons to whom such shares of Class B Common
Stock are first issued by the Corporation, "Permitted Transferee"
means (I) any person to whom or for whose benefit principal may be
distributed either during or at the end of the term of such trust
whether by power of appointment or otherwise, provided, however,
that such person shall be a Permitted Transferee of such transferor
determined pursuant to clause (i) above and (II) any Permitted
Transferee of any such transferor determined pursuant to clause (i)
above.
(iv) With respect to a Class B Holder that is a Charitable
Organization holding record and beneficial ownership of the
amount of shares of Class B Common Stock in question, "Permitted
Transferee" means (i) any person transferring such amount of
shares of Class B Common Stock to such Charitable Organization
and (ii) any Permitted Transferee of such transferor as
determined under clause (a) above.
(v) With respect to a Class B Holder that is a trustee of
a thrift or profit sharing plan acquiring record ownership of
shares of Class B Common Stock for the benefit of participants
in such thrift or profit sharing plan upon its initial issuance
by the Corporation, "Permitted Transferee" means (I) the employee
for whose account such shares of Class B Common Stock are held by
such trustee and (II) any Permitted Transferee of such employee as
determined under clause (i) above.
(vi) With respect to a Class B Holder that is a corporation
or partnership (other than a Charitable Organization) acquiring
record or beneficial ownership of Class B Common Stock upon its
initial issuance by the Corporation, "Permitted Transferee" means
(I) any partner of such partnership, or shareholder of such
corporation, on the record date for determining the persons to whom
such shares of Class B Common Stock are first issued by the
Corporation, (II) any person transferring shares of Class B Common
Stock to such corporation or partnership (provided, however, that
such transferor may not receive shares of Class B Common Stock in
excess of the shares transferred by the transferor to such entity),
and (III) any Permitted Transferee of any such person, partnership
or shareholder referred to in subclauses (I) and (II) of this clause
(vi), as determined under clause (i) above.
(vii) With respect to a Class B Holder that is a
corporation or partnership (other than a Charitable Organization
or a corporation or partnership described in the clause (vi)
above) holding record and beneficial ownership of shares of Class B
Common Stock, "Permitted Transferee" means (I) any person
transferring shares of Class B Common Stock to such corporation or
partnership and (II) any Permitted Transferee of any such transferor
as determined under clause (i) above.
(viii) With respect to a Class B Holder that is the
executor, administrator, personal representative or guardian of
the estate of a deceased Class B Holder, or that is the trustee
or receiver of the estate of a bankrupt or insolvent Class B
Holder, which holds record or beneficial ownership of the shares
of Class B Common Stock, "Permitted Transferee" means a Permitted
Transferee of such deceased, bankrupt or insolvent Class B Holder as
determined pursuant to clauses (i), (ii), (iv), (v), (vi) or (vii)
above, as the case may be.
(b) Notwithstanding anything to the contrary set forth
herein, any Class B Holder may pledge such holder's shares of Class B Common
Stock to a pledgee pursuant to a bona fide pledge of such shares as
collateral security for indebtedness due to the pledgee, provided that such
shares shall not be transferred to or registered in the name of the pledgee
and shall remain subject to the provisions of this Section C(5)(b). In the
event of foreclosure or other similar action by the pledgee, such pledged
shares of Class B Common Stock may only be transferred to a Permitted
Transferee of the pledgor or converted into shares of Common Stock, as
the pledgee may elect.
(c) For purposes of this Section C(5):
(i) The relationship of any person that is derived by or
through legal adoption should be considered a natural one.
(ii) Each joint owner of shares of Class B Common Stock
shall be considered a "Class B Holder" of such shares.
(iii) A minor for whom shares of Class B Common Stock
are held pursuant to a Uniform Gifts to Minors Act or similar law
shall be considered a Class B Holder of such shares.
(iv) Unless otherwise specified, the term "person" means
both natural persons and legal entities.
(v) Without derogating from the election conferred upon
the Corporation pursuant to subclause (IV) of clause C(5)(a)(i)
above, each reference to a corporation shall include any successor
corporation resulting from merger or consolidation; each reference
to a partnership shall include any successor partnership resulting
from the death or withdrawal of a partner; and each reference to a
trustee shall include any successor trustee.
(d) Any transfer of shares of Class B Common Stock
not permitted hereunder shall result in the conversion of the transferee's
shares of Class B Common Stock into shares of Common Stock, effective the
date on which certificates representing such shares are presented for
transfer on the books of the Corporation. The Corporation may, in connection
with preparing a list of stockholders, entitled to vote at any meeting of
stockholders, or as a condition to the transfer or the registration of
shares of Class B Common Stock on the Corporation's books, require the
furnishing of such affidavits or other proof as it deems necessary to
establish that any person is the beneficial owner of shares of Class B
Common Stock or is a Permitted Transferee.
(e) Except as provided above, shares of Class B Common
Stock shall be registered in the names of the beneficial owners thereof and
not in "street" or "nominee" name. For this purpose, a "beneficial owner" of
any shares of Class B Common Stock shall mean a person who, or an entity
which, possesses the power, either singly or jointly, to direct the voting
or disposition of such shares. The Corporation shall note on the
certificates for shares of Class B Common Stock the restrictions on transfer
and registration of transfer imposed by this Section (C)(5).
(6) Liquidation Rights
------------------
The Common Stock and the Class B Common Stock will have
equal and identical rights and privileges with respect to all matters other
than voting rights, dividends and, in the case of Class B Common Stock,
conversion rights. In the event of any dissolution, liquidation or winding
up of the affairs of the Corporation, whether voluntary or involuntary, after
payment or provision for payment of the debts and other liabilities of the
Corporation and after making provision for the holders of each series of
Preferred Stock, if any, the remaining assets and funds of the Corporation,
if any, shall be divided among and paid ratably to the holders of the Common
Stock and the Class B Common Stock, treated as a single class. In the event
of any merger or consolidation of the Corporation with or into any other
corporation pursuant to which shares of either Common Stock or Class B
Common Stock are converted into other securities, cash or other property,
the shares of the other class shall be converted into the identical
consideration at the same rate per share, unless the holders of a majority
of each class share have approved such merger or consolidation.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: In furtherance and not in limitation of the powers
conferred by the statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the Corporation.
To authorize and cause to be executed mortgages and liens upon
the real and personal property of the Corporation.
To set apart out any of the funds of the Corporation available for
dividends a reserve or reserves for any other proper purpose and to abolish
any such reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more
committees, each committee to consist of two or more of the directors of the
Corporation. The board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. Any such committee, to the extent provided
in the resolution or in the by-laws of the Corporation, shall have and may
exercise the powers of the board of directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; provided,
however, the by-laws may provide that in the absence or disqualification of
any member of such committee or committees, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he
or they constitute a quorum, may unanimously appoint another member of the
board of directors to act at the meeting in the place of any such absent or
disqualified member.
When and as authorized by the affirmative vote of the holders of
a majority of the stock issued and outstanding having voting power given at
a stockholder's meeting duly called upon such notice as is required by
statute or when authorized by the written consent of the holders of a
majority of the voting stock issued and outstanding, to sell, lease or
exchange all or substantially all of the property and assets of the
Corporation, including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may consist in whole
or in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its board of
directors shall deem expedient and for the best interests of the
Corporation.
SEVENTH: Meetings of stockholders may be held within or
without the State of Delaware, as the by-laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated
from time to time by the board of directors or in the by-laws of the
Corporation. Elections of the directors need not be by written ballot unless
the by-laws of the Corporation shall so provide.
EIGHTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
NINTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
an improper personal benefit. This article NINTH shall not eliminate or
limit the liability of a director for any act or omission occurring prior to
the effective date of its adoption. If the Delaware General Corporation Law
is amended after approval by the stockholders of this article to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such
repeal or modification.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, THE OLSTEN CORPORATION has caused this Restated
Certificate of Incorporation, which has been duly adopted in accordance with
Sections 242 and 245 of the Delaware General Corporation Law, to be executed
by Frank N. Liguori, its President, and to be attested to by Laurin L.
Laderoute, Jr., its Secretary, this 26th day of May, 1987.
THE OLSTEN CORPORATION
By__________________________
Frank N. Liguori
President
ATTEST:
_______________________________
Laurin L. Laderoute, Jr.
Secretary
EXHIBIT 4.3
IMI SYSTEMS, INC.
Incentive Stock Option Plan
1. Purposes.
The IMI Systems, Inc. Incentive Stock Option Plan
(the "Plan") is intended to encourage ownership of the
capital stock of IMI Systems, Inc. (the "Company") among
officers and other employees of the Company and to induce
them to exert their maximum efforts towards the Company's
success. By thus encouraging employees and promoting their
continued association with the Company, the Plan may be
expected to benefit the Company and its shareholders.
2. Shares Subject to the Plan.
The total number of shares of the common stock of
the Company, par value of $.01 per share (the "Capital
Stock"), which may be subject to options granted under the
Plan shall be 30,000 in the aggregate, subject to adjustment
as provided in Paragraph 8. The Company shall at all times
while the Plan is in force reserve such number of shares of
the Capital Stock as will be sufficient to satisfy the
requirement of outstanding options granted under the Plan.
The shares to be issued upon exercise of options granted
under the Plan shall in whole or in part be authorized and
issued shares or reacquired shares. In the event any option
granted under the Plan shall expire or terminate for any
reason without having been exercised in full or shall cease
for any reason to be exercisable in whole or in part, the
unpurchased shares subject thereto shall again be available
for option under the Plan.
3. Eligibility.
(a) Options may be granted only to key employees
(which term or used in the Plan includes officers) of the
Company or of a parent or subsidiary (within the meaning of
Section 425(e) and (f), respectively, of the Internal
Revenue Code of 1954, as amended (the "Code")), of the
Company, provided, however, that no option shall be granted
to any individual who owns (within the meaning of Sections
422A(b)(6) and 425(d) of the Code) at the time the option is
granted, more than 10% of the total combined voting power or
value of all classes of stock of the Company or a parent or
subsidiary of the Company, except as provided in
subparagraph (b) of this Paragraph 3. A director of the
Company or of a parent or subsidiary corporation who is not
also an employee of the Company or of a parent or subsidiary
corporation shall not be eligible to receive an option under
the Plan.
(b) Notwithstanding the provisions of
subparagraph (a) of this Paragraph 3, an option may be
granted, consistent with the other terms of the Plan, to an
employee who owns (within the meaning of Sections 422A(b)(6)
and 425(d) of the Code) more than 10% of the total combined
voting power of all classes of stock of the Company or a
parent or subsidiary of the Company if, at the time such
option is granted, the option price is an amount which
equals or exceeds 110% of the fair market value of the stock
subject to the option, and such option by its terms is not
exercisable more than five years after it is granted.
(c) Nothing contained in the Plan shall be
construed to limit the right of the Company to grant options
otherwise then under the Plan in connection with the
acquisition of the business and assets of any corporation,
firm, person or association, including options granted to
employees thereof who become employees of the Company or of
a parent or subsidiary corporation, nor shall the provisions
of the Plan be construed to limit the right of the Company
to grant options otherwise than under the Plan for other
proper corporate purposes.
(d) Subject to paragraph (e) of this Paragraph,
if options have been granted under the Plan, additional
options may be granted from time to time to a holder of such
an option, and options may be granted from time to time to
one or more employees who have not previously been granted
options under the Plan.
(e) Pursuant to Sections 422(a)(b)(8) and
422A(c)(4) of the Code, the aggregate fair market value
(determined as of the time an option is granted) of the
Capital Stock for which any employee is granted options
under the Plan shall not in any year exceed the sum of (i)
$100,000, plus (ii) one-half the excess of $100,000 over the
aggregate fair market value of the Capital Stock for which
such employee was granted options in each of the three (or
fewer) preceding calendar years beginning with 1981. For
purposes of this subparagraph (e), the term "Capital Stock"
shall mean any stock of the Company or its parent or
subsidiary for which the employee has been granted incentive
stock options (as defined in Section 422A of the Code).
4. Administration of the Plan.
The Plan shall be administered by the Board of
Directors of the Company as such Board may be composed from
time to time or by a Committee of the Board of Directors
(the "Committee") appointed to administer the Plan. As and
to the extent authorized by the Board of Directors of the
Company, the Committee may exercise the power and authority
vested in the Board under the Plan. Within the limits of
the express provisions of the Plan, the Board of Directors
shall have the authority, in its discretion, to determine
the individuals to whom, and the time or time at which,
options shall be granted, and the number of shares to be
subject to each option, to interpret the Plan, to prescribe,
amend and rescind rules and regulations relating to it, to
determine the terms and provisions of the respective option
agreements (which need not be identical) consistent with
their being "incentive stock options" as provided in Section
422A of the Code, and to make all other determinations and
take all other actions necessary or advisable for the
administration of the Plan. In making such determinations,
the Board of Directors may take into account the nature of
the services rendered by such individuals, their present and
potential contributions to the Company's success, and such
other factors as the Board of Directors, in its discretion,
shall deem relevant. The Board of Directors' determinations
on the matters referred to in this paragraph shall be
conclusive. Any determination by a majority of the members
of the Board of Directors shall be deemed to have been made
by the whole Board of Directors.
5. Terms of Options.
The terms of each option granted under the Plan
shall be determined by the Board of Directors consistent
with the provisions of the Plan, including the following:
(a) The purchase price of the shares of the
Capital Stock subject to each option shall not be less than
the fair market value (or, in the case of the grant of an
option to an employee described in subparagraph (b) of
Paragraph 3 hereof, not less than 110% of fair market value)
of the Capital Stock at the time such option is granted.
Such fair market value shall be determined by the Board and,
if the Capital Stock is listed on a national securities
exchange or traded on the Over-the Counter Market, shall be
the mean of the trading prices or of the high bid and low
asked prices of the Capital Stock on such exchange, or on
the Over-the-Counter Market as reported by the National
Quotation Bureau, Inc., as the case may be, on the day on
which the option is granted or, if there is no trading or
high bide or asked price on that day, the mean of the
trading or high bid and low asked prices on the most recent
day preceding the day on which the option is granted for
which such prices are available.
(b) Unless otherwise provided in any option
agreement under the Plan, an option granted under the Plan
shall become exercisable in whole, at any time, or in part,
from time to time, but in no case may an option be exercised
as to less than one hundred (100) shares at any one time (or
the remaining shares covered by the option if less than one
hundred (100)).
(c) Each option granted under the Plan shall by
its terms expire and shall not be exercisable after the
expiration of ten years from the date of its grant and shall
be subject to earlier termination as expressly provided in
Paragraph 6 hereof.
(d) No option granted under the Plan may be
exercised prior to the time that there shall have been
exercised in full or shall have expired by reason or lapse
of time, each incentive stock option (as defined in Section
422A of the Code) granted at an earlier date to the same
holder, to purchase (i) shares of the Capital Stock; (ii)
shares of stock of the Company other than the Capital Stock;
or (iii) shares of stock in a corporation which (at the time
of the granting of such option) is a parent or subsidiary of
the Company (as defined in Section 425(e) of the Company,
its parents or subsidiaries.
(e) An option granted under the Plan shall be
exercised by the delivery by the holder thereof to the
Company at its principal office (attention of the Secretary)
of written notice of the number of shares with respect to
which the option is being exercised accompanied by payment
in full of the purchase price of such shares. Payment for
such shares may be made (as determined by the Board of
Directors) (i) in cash, (ii) by certified check payable to
the order of the Company in the amount of such purchase
price, (iii) by promissory note issued by the employee
exercising the option in favor of the Company in an amount
equal to such purchase price and payable on terms prescribed
by the Board of Directors, (iv) by delivery of Capital Stock
to the Company having a fair market value equal to said
purchase price, or (v) by any combination of the methods of
payment described in (i) through (iv) above.
(f) The holder of an option shall have none of
the rights of a shareholder with respect to the shares
covered by his option until such shares shall be issued to
him upon the exercise of his option.
(g) No option granted under the Plan shall be
transferrable otherwise than by will or the laws of descent
and distribution and any option may be exercised during the
lifetime of the holder thereof only by him. No option
granted under the Plan shall be subject to execution,
attachment or other process.
6. Death or Termination of Employment.
(a) If the employment of a holder of an option
under the Plan shall be terminated voluntarily by the
employee or for cause, any option or options of such holder
shall expire forthwith. If such employment shall terminate
otherwise than (i) by reason of death, (ii) voluntarily by
the employee or, (iii) for cause, such option may be
exercise at any time within three (3) months after such
termination, subject to the provisions of subparagraph (c)
of this Paragraph 6. For the purposes of the Plan, the
retirement of an individual either pursuant to a pension or
retirement plan adopted by the Company or at the normal
retirement date prescribed from time to time by the Company
shall be deemed to be a termination of such individual's
employment other than voluntarily by the employee or for
cause.
(b) If the holder of an option under the Plan
dies (i) while employed by the Company or a parent or
subsidiary corporation or (ii) within three (3) months after
the termination of his employment other than voluntarily by
the employee or for cause, such option may, subject to the
provisions of subparagraph (c) of this Paragraph 6, be
exercised by a legatee or legatees of such option under such
individual's last Will or by his personal representatives or
distributees at any time within six (6) months after his
death.
(c) An option may not be exercised pursuant to
this Paragraph 6 except to the extent that the holder was
entitled to exercise the option at the time of termination
of employment or death, and in any event may not be
exercised after the expiration of ten years from the date
the option is granted.
7. Leave of Absence.
For purposes of the Plan, an individual who is on
military or sick leave or other bona fide leave of absence
(such as temporary employment by the Government) shall be
considered as remaining in the employee of the Company or of
a subsidiary corporation for ninety (90) days or such longer
period as shall be determined by the Board of Directors.
8. Adjustment upon Changes in Capitalization.
(a) In the event that the outstanding Capital
Stock is hereafter changed by reason of reorganization,
merger, consolidation, recapitalization, reclassification,
stock split-up, combination or exchange of shares and the
like, or dividends payable in shares of the Capital Stock,
an appropriate adjustment shall be made by the Board of
Directors in the aggregate number of shares available under
the Plan and in the number of shares and price per share
subject to outstanding options. If the Company shall be
reorganized, consolidated or merger with another
corporation, or if all or substantially all of the assets of
the Company shall be sold or exchanged, the holder of an
option shall at the time of issuance of the stock under such
a corporate event, be entitled to receive upon the exercise
of his option the same number and kind of shares of stock or
the same amount of property, cash or securities as he would
have been entitled to receive upon the happening of any such
corporate event as if he had been, immediately prior to such
event, the holder of the number of shares covered by his
option, provided, however, that in any of such events the
Board of Directors shall have the discretionary power to
take any action necessary or appropriate to prevent the
option granted herein from being disqualified as an
"incentive stock option" under the United States income tax
laws then in effect.
(b) Any adjustment in the number of shares shall
apply appropriately to only the unexercised portion of any
option granted hereunder. If fractions of a share would
result from any such adjustment, the adjustment shall be
revised to the next lower whole number of shares.
9. Further Conditions of Exercise.
(a) Unless prior to the exercise of the option
the shares of Capital Stock issuable upon such exercise have
been registered with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended, the
notice of exercise shall be accompanied by a representation
or agreement of the individual exercising the option to the
Company to the effect that such shares are being acquired
for investment and not with a view to the resale or
distribution thereof or such other documentation as may be
required by the Company unless in the opinion of counsel to
the Company such representation, agreement or documentation
is not necessary to comply with said Act and certificates
evidencing shares of Common Stock acquired by the exercise
of such option may bear a legend to that effect. The
Company may also issue "stop transfer" instructions to the
transfer agent for the Common Stock with respect to shares
of Common Stock acquired by the exercise of options.
(b) The Company shall not be obligated to deliver
any shares of the Capital Stock until they have been listed
on each securities exchange on which the Capital Stock may
then be listed or until there has been qualification under
or compliance with such estate or federal laws, rules or
regulations as the Company may deem applicable. The Company
shall use reasonable efforts to obtain such listing,
qualification and compliance.
10. Termination, Modification and Amendment.
The Plan (but not options previously granted under
the Plan) shall terminate ten (10) years from the earlier of
the date of its adoption by the Board of Directors or the
date on which the Plan is approved by the stockholders of
the Company, and no option shall be granted after
termination of the Plan.
The Plan may from time to time be terminated,
modified or amended by the affirmative vote of the holders
of a majority of the outstanding shares of the Company
entitled to vote thereon.
The Board of Directors of the Company may at any
time terminate the Plan or from time to time make such
modifications or amendments of the Plan as it may deem
advisable; provided, however, that the Board of Directors
shall not (i) modify or amend the Plan in any way that would
disqualify any option issued pursuant to the Plan as an
"incentive stock option" as defined in Section 422A of the
Code or (ii) without approval by the affirmative vote of the
holders of a majority of the outstanding shares of the
Company entitled to vote thereon, increase (except as
provided by Paragraph 8) the maximum number of shares as to
which options may be granted under the Plan.
No termination, modification or amendment of the
Plan may, without the consent of the individual to whom the
option shall have been previously granted, adversely affect
the rights conferred by such option.
11. Effectiveness of the Plan.
The Plan shall become effective upon adoption by
the Board of Directors of the Company. The Plan shall be
subject to approval by the affirmative vote of the holders
of a majority of the outstanding shares of the Company
entitled to vote thereon within one year following adoption
of the Plan by the Board of Directors, and all options
granted prior to such approval shall be subject thereto. In
event such approval is withheld, the Plan and all option
which may have been granted thereunder shall become null and
void.
12. Not a Contract of Employment.
Nothing contained in the Plan or in any option
agreement executed pursuant hereto shall be deemed to confer
upon any individual to whom an option is or may be granted
hereunder any right to remain in the employ of the Company
or a parent or subsidiary.
EXHIBIT 4.4
NONQUALIFIED STOCK OPTION AGREEMENT
OPTION AGREEMENT dated as of __________, 199__ by and
between _____________________ the "Optionee") residing at
_______________________________ and IMI Systems, Inc. (the
"Company"), a New York corporation having offices at 1500
Broadway, New York, New York 10036.
Pursuant to the grant of stock options hereunder, the
Company desires, by affording the Optionee an opportunity to
purchase shares of its common stock, par value $.01 per
share ("Stock"), to encourage the Optionee's ownership of
the Stock and to induce the Optionee to exert maximum
efforts towards the Company's success. The stock options
granted hereunder are not intended to qualify as incentive
stock options within the meaning of Section 422A of the
Internal Revenue Code of 1986, as amended, and accordingly
they shall not be treated as such.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option
---------------
The company hereby grants to the Optionee the right and
option (the "Option") to purchase all or any portion of an
aggregate of ____ shares (the "Option Shares") of Stock.
The Optionee shall not have any of the rights of a
shareholder with respect to any of the Option Shares until
such Option Shares shall be issued pursuant to the exercise
of this Option.
2. Purchase Price
--------------
The purchase price per share of the Option Shares shall
be ________.
3. Time of Exercise
----------------
(a) The Optionee shall be entitled to exercise
the Option for a period (the "Option Period") commencing
with the date hereof (the "Commencement Date"), and ending
ten years from the date hereof, unless the Option Period
shall be sooner terminated as expressly provided in Section
5 hereof.
(b) The Option shall become exercisable only to
the extent set forth in the following schedule:
Anniversary Percentage of
Commencement Date Option Shares
----------------- -------------
First 25%
Second 50%
Third 75%
Fourth 100%
Notwithstanding the above, if in the event of a merger or
consolidation, the Company is not the surviving corporation,
and in the event that the agreement of merger or
consolidation does not provide for the substitution of a new
option for this Option or for the assumption of this Option
by the surviving corporation, or in the event of the
dissolution or liquidation of the Company, the Optionee
shall have the right immediately prior to the effective date
of such merger, consolidation, dissolution or liquidation to
exercise this Option in whole or in part disregarding the
provisions of Paragraph (b) above; provided that all other
conditions precedent to such exercise set forth in this
Option Agreement other than the passage of time have
occurred.
4. Adjustments in Event of
Change in the Stock
-----------------------
In the event of any change in the Stock by reason of
any stock dividend, recapitalization, reorganization, merger
consolidation, split-up, combination or exchange of shares,
or similar change affecting the Stock, the number and kind
of shares subject to this Option Agreement and the purchase
price per share thereof shall be appropriately adjusted
consistent with such change in such manner as the Board may
deem equitable to prevent substantial dilution or
enlargement of the Optionee's rights under this Option
Agreement.
5. Exercise in the Event of
Termination with the Company
----------------------------
(a) If the Optionee's position with the Company
shall terminate otherwise than by reason of death, this
Option may not be exercise following such termination.
(b) If the Optionee shall die, the Option may be
exercised, to the extent that the Optionee shall have been
entitled to do so on the date of his death, by the person or
persons to whom the Optionee's right under the option passes
by will or applicable law, or if no such person has such
right, by his executors or administrators, but not later
than the expiration date specified in Section 3(a) hereof or
six months after the Optionee's death, whichever date is
earlier.
(c) Notwithstanding the above, in the event the
Board determines for the purposes of this Option Agreement
that the Optionee has engaged in gross misconduct, the
Optionee may not exercise this Option following such
determination.
6. Method and Conditions
of Exercising the Option
------------------------
(a) The Option shall be exercised by the delivery
by the Optionee to the Company at its principal office
(attention of the Secretary) of written notice of the number
of Option Shares with respect to which the Option is being
exercised accompanied by payment in full of the aggregate
purchase price of such Option Shares. Payment for such
Option Shares shall be made by cash or certified or cashiers
check payable to the order of the Company in the amount of
such purchase price.
(b) Unless the Option Shares may, at the time of
such acquisition, be lawfully resold in accordance with a
then currently effective registration statement or post-
effective amendment to a registration statement under the
Securities Act of 1933, the Board may require, as a
condition to the delivery of any shares to be purchased upon
exercise of such option:
(1) that the Company receive appropriate evidence that
the Optionee is acquiring such shares for his own account as
principal for investment and not with a view to the
distribution or public offering of all or any portion
thereof, or any interest therein, and that the Optionee
understands that such shares must be held indefinitely
unless resold in accordance with relevant transfer
restrictions, and an agreement to the effect that the
Optionee shall make no sale or other disposition of such
shares unless and until (i) the Company shall have received
an opinion of legal counsel satisfactory in form and
substance to it, to the effect that such sale or other
disposition may be made without registration under the then
applicable provisions of the Securities Act of 1933 and the
rules and regulations of the Securities and Exchange
Commission thereunder, or (ii) such shares shall thereafter
be included in a currently effective registration statement
or post-effective amendment to a registration statement
under the Securities Act of 1933; and (2) that the
certificate or certificates issued to evidence such shares
bear an appropriate legend summarizing the restrictions on
the further sale or other disposition thereof.
7. Compliance with Other
Laws and Regulations
---------------------
The grant and exercise of the Option and the
obligation of the Company to sell and deliver shares under
the Option, shall be subject to all applicable Federal and
state securities and other laws, rules and regulations and
to such approvals by any government, regulatory agency or
stock exchange as may be required, and, therefore, it may
become necessary at certain times for the Company to
prohibit the Optionee from exercising the Option or selling
the Option Shares.
8. Nontransferability
------------------
This Option is not transferable other than by will or
by the laws of descent and distribution in accordance with
Section 5(b) hereof and during the Optionee's lifetime is
exercisable only by the Optionee. Any attempt to transfer
this Option in contravention of this Section 8 is void ab
initio. This Option shall not be subject to execution,
attachment or other process.
9. Restricted Period
-----------------
No Options Shares may be sold prior to one year after
the receipt of such Shares (the "Restricted Period").
During the Restricted Period the Option Shares may not be
sold, assigned, transferred, pledged or otherwise
encumbered. During the Restricted Period the Option Shares
shall bear the appropriate legends. Except as provided
above, during the Restricted Period the Optionee shall have
all of the rights of a stockholder, including but not
limited to the right to receive dividends and to vote
shares.
10. Right of Repurchase Prior to Registration
-----------------------------------------
(a) Prior to the registration of the Option
Shares under the Securities Act of 1933, in the event that,
consistent with Section 6 hereof, the Optionee intends to
sell or transfer any Option Shares, the Optionee shall give
the Company 30 days' written notice of such proposed sale,
and the Company shall have the right, exercisable by written
notice of exercise to the Optionee within 15 days, to
repurchase at fair market value any or all of such Option
Shares proposed to be sold. In the event that the Company
shall not exercise such right, the proposed sale must be
consummated within 30 days of the expiration date of such
right of repurchase of the Company, or it will thereafter be
treated as a newly proposed sale and again be subject to the
provisions of this Section 10(a).
(b) In addition, prior to the registration of the
Option Shares under the Securities Act of 1933, commencing
with the date upon which, for any reason (including death),
the Optionee terminates his position with the Company, the
Company shall have the right, exercisable with 30 days of
termination (7 months in case of death), to repurchase at
fair market value from the Optionee or, in case of death,
the persons specified in Section 5(b), any or all of the
Options Shares then owned or, in the case of death,
thereafter acquired during any remaining exercise period for
the Option.
11. Withholding Taxes
-----------------
The Company may, in its discretion, require the
Optionee to pay to the Company the amount, or make such
other arrangements that the Company deems necessary to
satisfy its obligation to withhold Federal, state or local
income or other taxes with respect to the Option.
12. No Rights to Continued Position with the Company
------------------------------------------------
This Option Agreement shall not confer upon the
Optionee any right with respect to continuance of his or her
position with the Company or any subsidiary, nor shall it
interfere in any way with the right of the Company or any
subsidiary to terminate his or her position with the Company
at any time.
13. Notice
------
Any notice required or permitted pursuant to this
Option shall be in writing and shall be personally delivered
or sent by registered or certified mail to the addresses set
forth above or to such addresses as may be given to the
other party hereto. Notices sent by registered or certified
mail in the manner aforesaid shall be deemed give upon
dispatch.
14. Miscellaneous
-------------
This Option cannot be changed or terminated orally.
The Board may from time to time amend this Option Agreement,
provided, however, that without the consent of the Optionee
no amendment of this Option Agreement may adversely affect
the right conferred by this Option. The Board shall
administer and interpret this Option Agreement. Any
interpretation, determination or other action made or taken
by the Board shall be final, binding and conclusive. The
Board may from time to time delegate any or all of its
obligations and rights under this Option Agreement to a
committee of individuals appointed by the Board. This
Option shall be governed by and construed in accordance with
the laws of the State of New York. The paragraph headings
herein are intended for reference only and shall affect the
interpretation hereof.
IN WITNESS WHEREOF, this Option Agreement has been
duly executed as of the day and year first above written.
OPTIONEE IMI SYSTEMS, INC.
- ------------------- ---------------------
/s/ /s/ Robert S. Forman
President
EXHIBIT 5
August 11, 1995
Olsten Corporation
175 Broad Hollow Road
Melville, New York 11747
Re: Olsten Corporation ("the Company")--
Registration Statement on Form S-8
(the "Registration Statement)
----------------------------------
Ladies and Gentlemen:
You have requested our opinion in connection with
the filing by the Company of the Registration Statement
under the Securities Act of 1933, as amended (the "Act"),
relating to the issuance of up to 17,995 shares of the
Company's Class B Common Stock, par value $.10 ("Class B
Stock") issuable upon exercise of certain stock options to
purchase Class B Stock (which immediately prior to the
effective time of the merger of a wholly-owned subsidiary of
the Company with and into IMI Systems, Inc, a New York
corporation ("IMI") pursuant to an Agreement and Plan of
Merger dated as of June 27, 1995 among the Company, IMI and
other parties, represented options to purchase common stock,
par value $.01, of IMI), and up to 17,995 shares of the
Company's Common Stock, par value $.10 ("Common Stock"),
issuable upon conversion of such shares of Class B Stock
(such shares of Class B Stock and Common Stock, the
"Shares").
In connection with the opinions hereinafter
expressed, we have made such investigations and we have
examined the Registration Statement and such corporate
records of the Company and other agreements, resolutions and
documents as we have considered relevant or necessary as a
basis for such opinions. In all such investigations and
examinations, we have assumed the genuineness of all
signatures, the legal capacity of all individuals, the
authenticity of all documents submitted to us as originals,
the conformity to authentic original documents of all
documents submitted to us as certified, photocopies or true
copies or facsimiles thereof and the authenticity of the
original documents for such certified, photocopied or true
copies or facsimiles.
Based and relying on and subject to the foregoing
we are of the opinion that (i) when the Registration
Statement has become effective under the Act and (ii) the
Shares have been issued in accordance with the terms of the
instruments pursuant to which the stock options were issued,
the Shares will be validly issued, fully paid and non-
assessable.
We are members of the Bar of the State of New York
and are not licensed or admitted to practice law in any
other jurisdiction, and we express no opinion with respect
to the laws of any jurisdiction other than New York, the
United States of America and the Delaware General
Corporation Law.
We hereby consent to the use of this opinion as an
exhibit to the Registration Statement and to the reference
to our firm in each prospectus which is a part thereof under
the caption "Legal Matters."
This opinion may be relied upon by you and may not
be circulated or republished to or relied upon by, any other
person without our prior written authorization.
Very truly yours,
/s/ Gordon Altman
Butowsky Weitzen Shalov &
Wein
EXHIBIT 24.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this
Registration Statement of Olsten Corporation on Form S-8
(Registration No. 33- ) of our report dated February 6,
1995, on our audits of the consolidated financial statements
of Olsten Corporation and Subsidiaries as of January 1, 1995
and January 2, 1994, and for each of the three years in the
period ended January 1, 1995, which report is included in
the Company's Annual Report on Form 10-K. We also consent
to the reference to our firm under the captions "Experts".
/s/ Coopers & Lybrand L.L.P.
New York, New York
August 11, 1995
