As filed with the Securities and Exchange Commission on August
23, 1996.
Registration No. 333-7867
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________
Post-Effective Amendment No. 1 on
FORM S-3
to FORM S-4
REGISTRATION STATEMENT
Under
The Securities Act of 1933
OLSTEN CORPORATION
(Exact name of registrant as specified in its charter)
7363
Delaware 13-2610512
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
_____________________________
175 Broad Hollow Road
Melville, New York 11747
(516) 844-7800
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
William P. Costantini, Esq.
Senior Vice President and General Counsel
175 Broad Hollow Road
Melville, New York 11747
(516) 844-7250
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_____________________________
COPIES TO:
Marjorie Sybul Adams, Esq.
Gordon Altman Butowsky
Weitzen Shalov & Wein
114 West 47th Street
New York, New York 10036
(212) 626-0800
__________________________
Approximate date of commencement of proposed sale to the public:
As soon as possible after the effective date of this Post-
Effective Amendment.
_____________________________
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [__]
<PAGE>
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. X
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration for the same
offering. [__]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [__]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [__]
__________________________
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933, as amended, or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
PAGE
<PAGE>
PROSPECTUS
OLSTEN CORPORATION
This Prospectus ("Prospectus") relates to up to 200,383
shares of Class B Common Stock, par value $.10 per share ("Class
B Stock"), of Olsten Corporation, a Delaware corporation
("Olsten") that may be issued upon the exercise of (a)
outstanding stock options (the "Stock Options") and (b)
outstanding redeemable common stock purchase warrants
("Warrants"), and the issuance of up to 200,383 shares of Olsten
Common Stock, par value $.10 per share ("Olsten Common Stock")
issuable upon conversion of such shares of Class B Stock. The
Stock Options and Warrants were originally issued by Co-Counsel,
Inc., a Texas corporation ("Co-Counsel") prior to the merger (the
"Merger") of Lawyers Acquisition Corp., a wholly-owned subsidiary
of Olsten with and into Co-Counsel on August 9, 1996.
As a result of the Merger, Co-Counsel became a wholly-owned
subsidiary of Olsten and (i) each outstanding share of Co-Counsel
Common Stock, par value $.01 per share ("Co-Counsel Common
Stock"), was converted into the right to receive .1069 of one
share (the "Conversion Number") of Class B Stock, and (ii) each
outstanding Stock Option and Warrant was adjusted so that upon
exercise thereof the holder will receive the number of shares of
Class B Stock equal to the product obtained by multiplying (x)
the number of shares of Co-Counsel Common Stock subject to the
Stock Option or Warrant by (y) the Conversion Number. Each share
of Class B Stock is convertible at all times, without cost to the
holder thereof, into one share of Olsten Common Stock.
No person has been authorized to give any information or to
make any representation other than those contained or
incorporated by reference in this Prospectus in connection with
the offering of securities described herein and, if given or
made, such information or representation should not be relied
upon as having been authorized by Olsten or any other person.
This Prospectus does not constitute an offer to sell, or the
solicitation of any offer to purchase, any securities in any
jurisdiction in which, or to any person to whom, it is unlawful
to make such offer or solicitation. Neither the delivery of this
Prospectus nor any distribution of the securities described
herein shall, under any circumstances, create any implication
that there has been no change in the affairs of Olsten since the
date hereof or that the information set forth or incorporated by
reference herein is correct as of any time subsequent to its
date.
<PAGE>
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATESECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is _____, 1996.
<PAGE>
<PAGE> AVAILABLE INFORMATION
Olsten is and Co-Counsel was, prior to its acquisition by
Olsten, subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the Exchange Act),
and in accordance therewith, is required to file reports, proxy
statements and other information with the Securities and Exchange
Commission (the SEC). Copies of such reports, proxy statements
and other information can be inspected and copied at the public
reference facilities maintained by the SEC at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the following Regional Offices of the SEC: Midwest
Regional Office, Citicorp Center, Suite 1400, 500 West Madison
Street, Chicago Illinois 60661; and Northeastern Regional Office,
7 World Trade Center, 13th Floor, New York, New York 10048.
Copies of such material can be obtained at prescribed rates from
the Public Reference Section of the SEC, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Reports, proxy statements and other
information concerning Olsten may be inspected at the offices of
the NYSE, 20 Broad Street, New York, New York 10005.
Olsten has filed with the SEC a Post-Effective Amendment No.
1 on Form S-3 to its Registration Statement (No. 333-7867) on
Form S-4 (herein, together with all amendments and exhibits
thereto, referred to as the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act") with
respect to the securities offered hereby. This Prospectus
constitutes the prospectus of Olsten filed as part of the
Registration Statement, certain portions of which are omitted as
permitted by the rules and regulations of the SEC. For further
information with respect to Olsten and the securities offered
hereby, reference is made to the Registration Statement,
including the exhibits thereto, which may be inspected at the
SEC's offices, without charge, or copies of which may be obtained
from the SEC upon payment of prescribed fees. Statements
contained in this Prospectus as to the contents of any contract
or other document filed as an exhibit to the Registration
Statement are not necessarily complete, and in each instance
reference is hereby made to the copy of such contract or other
document filed as an exhibit to the Registration Statement, each
such statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This Prospectus incorporates certain documents by reference
which are not presented herein or delivered herewith. These
documents are available upon request from Laurin L. Laderoute,
Jr., Secretary, Olsten Corporation, 175 Broad Hollow Road,
Melville, New York 11747-8905, telephone number (516) 844-7800.
The following documents, which have been filed with the SEC
pursuant to the Exchange Act, are hereby incorporated herein by
reference:
(a) Olsten's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) Olsten's Quarterly Reports on Form 10-Q for the periods
ended March 31, 1996 and June 30, 1996;
(c) Olsten's Current Reports on Form 8-K dated March 13,
1996, May 3, 1996, May 30, 1996, July 11, 1996 and
August 8, 1996; and
(d) The information contained under the captions "Security
Ownership of Certain Beneficial Owners and Management"
and "Executive Compensation" in Olsten's definitive
Proxy Statement dated April 2, 1996.
All documents filed by Olsten pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of
Olsten Common Stock to
<PAGE>
which this Prospectus relates, shall be deemed to be incorporated
herein by reference and to be part hereof from the date of filing
of such documents. All information appearing in this Prospectus
or in any document incorporated herein by reference is not
necessarily complete and is qualified in its entirety by the
information and financial statements (including notes thereto)
appearing in the documents incorporated herein by reference and
should be read together with such information and documents.
Any statement contained in a document incorporated or deemed
to be incorporated herein by reference shall be deemed to be
modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other
subsequently filed document that is deemed to be incorporated
herein by reference modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Prospectus.
INFORMATION CONCERNING OLSTEN
Olsten is North America's largest provider of home health
care and related services and one of the world's leading
providers of staffing services to business, industry and
government. Through Olsten Kimberly QualityCare, Olsten provides
health care network management and caregivers for home health
care and institutions. Olsten Kimberly QualityCare employs more
than 150,000 caregivers and provides services to over 400,000
patients and clients, including managed care organizations,
employers, government agencies, hospitals and individuals.
Services include skilled nursing, home health aides, infusion
therapy, home medical equipment, respiratory therapy, pediatrics,
rehabilitation and disease management. Olsten Kimberly
QualityCare is also North America's largest provider of
management services to hospital-based home health agencies.
Through Quantum Health Resources, Olsten is engaged in the
provision of therapies and support services to individuals
afflicted by certain chronic diseases. Primarily through Olsten
Staffing Services, Olsten also operates 700 staffing and
information technology offices in North America, South America
and Europe, providing assignment employees to business, industry
and government, as well as services for the design, development
and maintenance of information systems.
Through Co-Counsel, Olsten provides temporary and permanent
attorneys and paralegals to law firms and corporate law
departments primarily located in Houston, Dallas, Chicago, New
York City and Los Angeles. Co-Counsel's clients are typically
corporate law departments and law firms which have a need for
additional legal staffing. These clients have recognized that it
is often more economical to utilize temporary legal personnel
than full-time employees and, in the case of corporate law
departments, engage outside counsel.
Additional information concerning Olsten and its
subsidiaries is contained in Olsten's Annual Report on Form 10-K
for the year ended December 31, 1995, its Quarterly Report on
Form 10-Q for the periods ended March 31, 1996 and June 30, 1996
and its Current Reports on Form 8-K dated March 13, 1996, May 3,
1996, May 30, 1996, July 11, 1996, August 8, 1996 and its other
public filings. See Available Information and Incorporation
of Certain Documents by Reference.
USE OF PROCEEDS
The cash received by Olsten upon exercise of the Stock
Options and the Warrants will be used for general working capital
purposes.
PLAN OF DISTRIBUTION
The following is a description of the Stock Options and the
Warrants.
<PAGE>
STOCK OPTIONS. As of the effective time of the Merger (the
"Effective Time"), Co-Counsel had an aggregate of 187,000 shares
of Co-Counsel Common Stock reserved for issuance pursuant to
options granted and then currently outstanding under Co-Counsel's
Employee Stock Option Plan and Co-Counsel's Stock Option Plan for
Non-Employee Directors. At the Effective Time, each Stock Option
was automatically converted into an option to purchase the number
of shares of Class B Stock equal to the product obtained by
multiplying the number of shares of Co-Counsel Common Stock
subject to the original option by the Conversion Number, at a
price per share equal to the quotient obtained by dividing the
exercise price for the shares of Co-Counsel Common Stock subject
to such Stock Option by the Conversion Number.
In the case of any Stock Option to which Section 421 of the
Internal Revenue Code of 1986, as amended (the "Code") applies by
reason of its qualification under any of Sections 422-424 of the
Code ("qualified stock options"), the option price, the number of
shares purchasable pursuant to such option and the terms and
conditions of exercise of such option shall be determined in
order to comply with Section 424(a) of the Code.
The Company has reserved 19,990 shares of Class B Stock and
19,990 shares of Olsten Common Stock issuable upon conversion of
such shares of Class B Stock, for issuance upon exercise of the
Stock Options.
WARRANTS. The Warrants were issued (i) pursuant to a
Warrant Agreement dated as of November 12, 1993, by and between
Of Counsel Enterprises, Inc. (former name of Co-Counsel) and
American Stock Transfer & Trust Company, as Warrant Agent (the
"Warrant Agreement") and (ii) pursuant to warrants for units
consisting of one Warrant and one share of Co-Counsel Common
Stock, which were issued in connection with Co-Counsel's public
offering to the representatives identified in Co-Counsel's
Prospectus dated November 15, 1993. As of the Effective Time,
Co-Counsel had outstanding warrants to purchase approximately
1,437,500 shares of Co-Counsel Common Stock at an exercise price
of $3.75 per share, subject to the terms and conditions of the
Warrant Agreement. The Warrants expire on November 15, 1998. At
the Effective Time, each Warrant was automatically deemed to
constitute a warrant to acquire the number of shares of Class B
Stock equal to the product obtained by multiplying the number of
shares of Co-Counsel Common Stock subject to a Warrant by the
Conversion Number, at a price per share of Olsten Class B Stock
equal to the quotient obtained by dividing the exercise price for
the shares of Co-Counsel Common Stock subject to such Warrant by
the Conversion Number.
For example, a holder of 10,000 Warrants would, after the
Effective Time, and prior to November 15, 1998, be entitled to
receive 1,069 (10,000 times .1069) shares of Class B Stock upon
payment of the exercise price of $35.08 per share ($3.75 divided
by .1069).
The Company has reserved 180,393 shares of Class B Stock and
180,393 shares of Olsten Common Stock issuable upon conversion of
such shares of Class B Stock for issuance upon the exercise of
the Co-Counsel Warrants.
The number of shares of Class B Stock that may be purchased
upon exercise of a Stock Option, or Warrant shall not include any
fractional share and, upon exercise of such Stock Option or
Warrant, a cash payment shall be made for any fractional share in
accordance with the requirements of such Stock Option or Warrant.
LEGAL MATTERS
The validity of the shares of Class B Stock and Olsten
Common Stock issuable upon the exercise of the Stock Options and
conversions of the Convertible Debentures has been passed upon by
Gordon Altman Butowsky Weitzen Shalov & Wein. Andrew N. Heine, a
director of the Company, is of counsel to Gordon Altman Butowsky
Weitzen Shalow & Wein.
<PAGE>
EXPERTS
The consolidated balance sheets as of December 31, 1995 and
January 1, 1995 and the consolidated statements of income,
shareholders' equity and cash flows for each of the three years
in the period ended December 31, 1995 of Olsten incorporated by
reference in this Prospectus have been incorporated herein in
reliance on the report of Coopers & Lybrand LLP, independent
accountants, given on the authority of that firm as experts in
accounting and auditing.
PAGE
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The only fees incurred in connection with this transaction
are legal fees and expenses, which are estimated to be
approximately $10,000.
ITEM 15. INEDMNIFICATION OF DIRECTORS AND OFFICERS
(a) 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
<PAGE>
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 I 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 Registrant maintains directors' and
officers' liability insurance covering certain liabilities that
may be incurred by the directors and officers of the Registrant
in connection with the performance of their duties.
ITEM 16. EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
___________ ______________________
4.1 Form of Co-Counsel's Stock Option Plan for
Non-Employee Directors.
4.2 Form of Co-Counsel's Employee Stock Option
Plan.
4.3 Form of Warrant Agreement.
<PAGE>
*5.1 Opinion of Gordon Altman Butowsky Weitzen
Shalov & Wein (incorporated by reference to
Exhibit 5.1 to Olsten's Registration
Statement on Form S-4, Registration Number
333-7867).
23.1 Consent of Gordon Altman Butowsky Weitzen
Shalov & Wein.
23.2 Consent of Coopers & Lybrand LLP.
*24.1 Power of Attorney (included on signature page
to this Registration Statement).
* Previously filed.
ITEM 17. UNDERTAKINGS.
A. Undertaking Pursuant to Rule 415.
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:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) to include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration
statement;
provided, however, that paragraphs (1)(i) and (1(ii) do
not apply, if the registration statement is on Form S-3
or Form S-8, and the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are
incorporated by reference in the 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; and
(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.
<PAGE>
B. Undertaking Regarding Documents Subsequently Filed Under the
Exchange Act.
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 (and, where applicable, each filing of any employee benefit
plan's annual report pursuant to 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. Undertaking Regarding Request For Acceleration of Effective
Date.
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
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-3 and has duly caused this Post-Effective Amendment No. 1 on
Form S-3 to its Form S-4 Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Melville, State of New York on __________, 1996.
OLSTEN CORPORATION
By:_____________________________________
Frank N. Liguori,
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 1 on Form S-3 to the Form S-4
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Name Title Date
____ _____ ____
/s/Frank N. Liguori Chairman and Chief _________, 1996
Executive Officer
and Director (Principal
Executive Officer)
/s/Anthony J. Puglisi Senior Vice President _________, 1996
-Finance (Principal
Financial and Accounting
Officer)
/s/Stuart Olsten Director _________, 1996
/s/Andrew N. Heine Director _________, 1996
/s/Stuart R. Levine Director _________, 1996
/s/John M. May Director _________, 1996
/s/Miriam Olsten Director _________, 1996
/s/Richard J. Sharoff Director _________, 1996
/s/Raymond S. Troubh Director _________, 1996
/s/Josh S. Weston Director _________, 1996
By:/s/ Laurin L. Laderoute, Jr.
____________________________
Attorney-in-Fact
PAGE
<PAGE>
Exhibit Index
_____________
Exhibit No. Description of Exhibit
___________ ______________________
4.1 Form of Co-Counsel's Stock Option Plan for
Non-Employee Directors.
4.2 Form of Co-Counsel's Employee Stock Option
Plan.
4.3 Form of Warrant Agreement.
*5.1 Opinion of Gordon Altman Butowsky Weitzen
Shalov & Wein (incorporated by reference to
Exhibit 5.1 to Olsten's Registration
Statement on Form S-4, Registration Number
333-47430.)
23.1 Consent of Gordon Altman Butowsky Weitzen
Shalov & Wein.
23.2 Consent of Coopers & Lybrand LLP.
*24.1 Power of Attorney (included on signature page
to this Registration Statement).
* Previously filed.
PAGE
<PAGE>
EXHIBITS
TO
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-3
TO FORM S-4
OF
REGISTRATION STATEMENT
OF
OLSTEN CORPORATION
<PAGE>
WARRANT AGREEMENT
_________________
AGREEMENT, dated as of the 12th day of November, 1993, by
and between OF COUNSEL ENTERPRISES, INC., a Texas corporation (the
"Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY as Warrant
Agent (the "Warrant Agent").
WITNESSETH
__________
WHEREAS, the Company has determined to issue and deliver
up to 1,437,500 Common Stock Purchase Warrants ("Warrants")
evidencing the right of the holders thereof to purchase up to an
aggregate of 1,437,500 shares of the Company's Common Stock, par
value $.01 per share ("Common Stock"), which Warrants are to be
issued and delivered as part of units ("units"); and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing to act in
connection with the issuance, registration, transfer and exchange
of the Warrants, the issuance of certificates representing the
Warrants, the exercise of the Warrants, and the rights of the
holders thereof;
NOW, THEREFORE, in consideration of the premises and the
mutual agreement hereinafter set forth and for the purpose of
defining the terms and provisions of the Warrants and the
certificates representing the Warrants and the respective rights
and obligations thereunder of the Company, the holders of
certificates representing the Warrant and the Warrant Agent, the
parties hereto agree as follows:
SECTION 1. DEFINITIONS. As used herein, the following
terms shall have the following meanings, unless the context shall
otherwise require:
(a) "Corporate Office" shall mean the office of the
Warrant Agent (or its successor) at which at any particular time
its principal business shall be administered, which office is
located at the date hereof at 40 Wall Street, New York, New York
10005.
(b) "Exercise Date" shall mean, as to any Warrant,
the date on which the Warrant Agent shall have received at the
Corporate Office both (a) the certificate (the "Warrant
Certificates") representing such Warrant, with the exercise form
thereon duly executed by the Registered Holder thereof or his
attorney duly authorized in writing, and (b) payment in cash, or by
official bank or certified check made payable to the Company, of an
amount in lawful money of the United States of America equal to the
<PAGE>
applicable Stock Purchase Price; provided, however, that the
Exercise Date shall not occur earlier than November 15, 1994.
(c) "Market Value" shall mean, on any date specified
herein, the price obtained by taking the average, on each such
trading day, of, of (A) the high and low sale price of a share of
Common Stock or if no such sale takes place on any such trading
day, the average of the closing bid and asked prices thereof on any
such trading day, in each case as officially reported on all
national securities exchanges on which the Common Stock is then
listed or admitted to trading, or (B) if the Common Stock is not
then listed or admitted to trading on any national securities
exchange, the closing price of the Common Stock on such date or if
no closing price is available on any such trading date, the average
of the closing bid and asked prices thereof on any such trading
date in the over-the-counter market as reported to NASDAQ, or, if
the Common Stock is not then quoted in such system, the average of
the highest and lowest bid and asked prices reported by the market
makers and dealers for the Common Stock listed as such by the
National Quotation Bureau, Incorporated or any similar successor
organization.
(d) "Stock Purchase Price" shall mean the purchase
price to be paid upon exercise of the Warrants in accordance with
the terms hereof, which price shall be $3.75 per share of Common
Stock subject to modification and adjustment from time to time
pursuant to the provisions of Section 8.
(e) "Redemption Date" shall mean the date, not prior
to November 15, 1994, when the Company redeems the Warrants.
(f) "Redemption Price" shall mean $.05 per Warrant.
(g) "Transfer Agent" shall mean American Stock
Transfer & Trust Company as the Company's transfer agent, or its
authorized successor such.
(h) "Warrant Expiration Date" shall mean 5:00 P.M.
(New York time) on the earlier of (i) the Redemption Date or (ii)
November 15, 1998.
SECTION 2. WARRANTS AND ISSUANCE OF WARRANT
CERTIFICATES: REGISTRATION
(a) A Warrant shall initially entitle the
Registered Holder of the Warrant Certificate representing such
Warrant to purchase one share of Common Stock upon the exercise
thereof and payment of the Stock Purchase Price (subject to
modification as herein provided), in accordance with the terms
hereof.
(b) From time to time from November 15, 1994, to
the earlier of the Redemption Date of the Warrant Expiration Date,
the Transfer Agent shall deliver stock certificates in required
<PAGE>
whole number denominations representing up to an aggregate of
1,437,500 shares of Common Stock, subject to adjustment as
described herein, upon the exercise of the Warrants in accordance
with this Agreement.
(c) From time to time, up to the earlier of the
Redemption Date or the Warrant Expiration Date, the Warrant Agent
shall deliver Warrant Certificates in required whole number
denominations to the persons entitled thereto in connection with
any transfer or exchange permitted under this Agreement; provided
that no Warrant Certificates shall be issued except (i) those
issued upon the exercise of fewer than all the Warrants represented
by a Warrant Certificate, to evidence any unexercised Warrants held
by the exercising Registered Holder; (ii) those issued upon any
transfer or exchange pursuant to Section 6; (iii) those issued in
replacement of lost, stolen, destroyed or mutilated Warrant
Certificates pursuant to Section 7; and (iv) at the option of the
Company, in such form as may be approved by its Board of Directors,
to reflect any adjustment or change in the Stock Purchase Price or
the number of shares of Common Stock purchasable upon exercise of
the Warrants made pursuant to Section 8.
(d) The Warrant Agent shall maintain books (the
"Warrant Register"), for the registration of original issuance and
the registration of transfer of the Warrants. Upon the initial
issuance of the Warrants, the Warrant Agent shall issue and
register the Warrants in the names of the respective holders
thereof in such denominations and otherwise in accordance with
instructions delivered to the Warrant Agent by the Company.
(e) Prior to due presentment for registration of
transfer of any Warrant, the Company and the Warrant Agent may deem
and treat the person in whose name such Warrant shall be registered
upon the Warrant Register (the "Registered Holder"), as the
absolute owner of such Warrant and of each Warrant represented
thereby (notwithstanding any notation of ownership or other writing
on the Warrant Certificate made by anyone other than the Company or
the Warrant Agent), for the purpose of any exercise thereof, and
for all other purposes, and neither the Company nor the Warrant
Agent shall be affected by any notice to the contrary.
(f) The Warrant Agent understands that the Warrants
are being issued as part of Units together with shares of the
Company's Common Stock and that the shares of Common Stock and the
Warrants are immediately detachable and may be traded separately.
SECTION 3. FORM AND EXEUCTION OF WARRANT
CERTIFICATE.
(a) Warrant Certificates shall be substantially in
the form annexed hereto as Exhibit A (provisions of which Exhibit
are hereby incorporated herein) and may have such letters, numbers
or other marks of identification or designation and such legends,
<PAGE>
summaries or endorsements printed, lithographed or engraved thereon
as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on
which the Warrants may be listed, or to conform to usage. The
Warrant Certificates shall be dated the date of issuance thereof
(whether upon initial issuance, transfer or exchange or in lieu of
mutilated, lost, stolen, or destroyed Warrant Certificates) and
issued in registered form. Warrants shall be numbered serially
with the letter W on the Warrants of all denominations.
(b) Warrant Certificates shall be executed on
behalf of the Company by its Chief Executive Officer and by its
Secretary by manual signatures or by facsimile signatures printed
thereon, and shall have imprinted thereon a facsimile of the
Company's seal. In case any officer of the Company who shall have
signed any of the Warrant Certificates shall cease to be such
officer of the Company before, the date of issuance of the Warrant
Certificates and before issue and delivery thereof, such Warrant
Certificates may nevertheless be issued and delivered by the
Warrant Agent to the Registered Holder without further action by
the Company, except as otherwise provided by Section 4 hereof. No
Warrant may be exercised until countersigned by the Warrant Agent
as provided for in Section 3(c) hereof.
(c) The Warrant Agent shall countersign a Warrant
only upon the occurrence of either of the following events:
(i) if the Warrant is to be issued in exchange or
substitution for one or more previously countersigned Warrants, as
hereinafter provided, or
(ii) if the Company instructs the Warrant Agent to
do so.
SECTION 4. EXERCISE.
Each Warrant, when countersigned by the Warrant Agent,
may be exercised by the Registered Holder thereof at the Corporate
Office at any time from November 15, 1994 to the earlier of the
Redemption Date or the Warrant Expiration Date, upon the payment of
the Stock Purchase Price (subject to adjustment as herein provided)
and upon the other terms and subject to the conditions set forth
herein and in the applicable Warrant Certificate. A Warrant shall
be deemed to have been exercised immediately prior to the close of
business on the Exercise Date and the person entitled to receive
the securities deliverable upon such exercise shall be treated for
all purposes as the holder of such securities upon exercise thereof
as of the close of business on the Exercise Date. As soon as
practicable on or after the Exercise Date, the Warrant Agent shall
deposit the proceeds received from the exercise of a Warrant and
shall notify the Company in writing of such exercise. Promptly
following, and in any event within five Business days after the
<PAGE>
date of such notice from the Warrant Agent, the Warrant Agent, on
behalf of the Company, shall cause to be issued and delivered by
the Transfer Agent to the personal or persons entitled to receive
the same a certificate or certificates for the securities
deliverable upon such exercise (plus a Warrant Certificate for any
remaining unexercised Warrants of the Registered Holder), unless
prior to the date of issuance of such certificates the Company
shall instruct the Warrant Agent to refrain from causing such
issuance of certificates pending clearance of checks received in
payment of the Stock Purchase Price pursuant to such Warrants.
Upon the exercise of any Warrant and clearance of the funds
received, the Warrant Agent shall promptly remit the payment
received for the issuance of Common Stock issued upon exercise of
the Warrant to the Company or as the Company may direct in writing.
SECTION 5. RESERVATION OF SHARES; LISTING: PAYMENT
OF TAXES; ETC.
(a) The Company covenants that it will at all times
reserve and keep available out of its authorized Common Stock,
solely for the purpose of issue upon exercise of the Warrants, such
number of shares of Common Stock as shall then be issuable upon the
exercise of all outstanding Warrants. The Company covenants that
all shares of Common Stock which shall be issuable upon the
Warrants shall, at the time of delivery, be duly and validly
issued, fully paid, nonassessable and free from all taxes, liens
and charges with respect to the issue thereof (other than those
which the Company shall promptly pay or discharge), and that upon
issuance such shares shall be listed on each national securities
exchange, if any, on which the other outstanding shares of Common
Stock of the Company are then listed.
(b) The Company has filed with the Securities and
Exchange Commission a Registration Statement No. 33-68480-FW (the
"Registration Statement") on Form SB-2 for the registration, under
the Securities Act of 1933, as amended, of, among others, the
Warrants and the Common Stock issuable upon exercise of the
Warrants. The Company agrees that, if necessary, it shall file
with the Securities and Exchange Commission a post-effective
amendment to the Registration Statement, or a new registration
statement, for the registration, under the Securities Act of 1933,
as amended, of the Common Stock issuable upon exercise of the
Warrants. In either case, the Company will use its best efforts to
cause the same to become effective and to maintain the
effectiveness of such registration statement until the expiration
of the Warrants in accordance with the provisions of this
Agreement.
(c) The Company shall pay all documentary, stamp or
similar taxes and other governmental charges that may be imposed
with respect to the issuance of the Warrants, or the issuance, or
delivery of any shares of Common Stock upon exercise of the
Warrants; provided, however, that if the shares of Common Stock are
to be delivered in a name other than the name of the Registered
<PAGE>
Holder of the Warrant Certificate representing any Warrant being
exercised, then no delivery shall be made unless the person
requesting the same has paid to the Warrant Agent the amount of
transfer taxes or charges incident thereto, if any. The Company
shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of
any Warrant Certificate in a name other than that of the then
Registered Holder of the Warrant being exercised.
(d) The Warrant Agent is hereby irrevocably
authorized to requisition the Company's Transfer Agent from time to
time for certificates representing shares of Common Stock required
upon exercise of the Warrants, and the Company will authorize the
Transfer Agent to comply with all proper requisitions. The Company
will file with the Warrant Agent a statement setting forth the name
and address of the Transfer Agent of the Company for shares of
Common Stock issuable upon the exercise of the Warrants.
SECTION 6. EXCHANGE AND REGISTRATION OF TRANSFER.
(a) Warrant Certificates may be exchanged for other
Warrant Certificates representing an equal aggregate number of
Warrants of the same class or may be transferred in whole or in
part. Warrant Certificates to be exchanged shall be surrendered to
the Warrant Agent at its Corporate Office, and upon satisfaction of
the terms and provision hereof, the Company shall execute and the
Warrant Agent shall countersign, issue and deliver in exchange
therefor the Warrant Certificates which Registered Holder making
the exchange shall be entitled to receive.
(b) Upon due presentment for registration of transfer of any
Warrant Certificate at such office, the Company shall execute and
the Warrant Agent shall issue and deliver to the transferee
transferees a new Warrant Certificate or Certificates representing
an equal aggregate number of Warrants of the same class.
(c) With respect to all Warrant Certificates
presented for registration or transfer, or for exchange or
exercise, the subscription form on the reverse thereof shall be
duly endorsed, or be accompanied by a written instrument or
instruments of transfer and subscription, in form satisfactory to
the Company and the Warrant Agent, duly executed by the Registered
Holder or his attorney-in-fact duly authorized in writing.
(d) A service charge may be imposed by the Warrant
Agent for any exchange or registration of transfer of Warrant
Certificates. In addition, the Company may require payment by the
Registration Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
(e) All Warrant Certificates surrendered for
exercise or for exchange in case of mutilated Warrant Certificates
shall be promptly canceled by the Warrant Agent and thereafter
retained by the Warrant Agent until termination of this Agreement
<PAGE>
or resignation as Warrant Agent, disposed of or destroyed, at the
direction of the Company. The Warrant Agent will record all such
exercises or exchanges on the Warrant Register.
(f) Prior to due presentment for registration of
transfer thereof, the Company and the Warrant Agent may deem and
treat the Registered Holder of any Warrant Certificate as the
absolute owner thereof and of each Warrant represented thereby
(notwithstanding any notations of ownership or writing thereon made
by anyone other than a duly authorized officer of the Company or
the Warrant Agent) for all purposes and shall not be affected by
any notice to the contrary.
SECTION 7.LOSS OR MUTILATION.
Upon receipt by the Company and the Warrant Agent of
evidence satisfactory to them of the ownership of and loss, theft,
destruction or mutilation of any Warrant Certificate and (in case
of loss, theft, destruction or mutilation of any Warrant
Certificate and (in case of loss, theft or destruction) or
indemnity satisfactory to them, and in case of mutilation) upon
surrender and cancellation thereof, the Company shall execute and
the Warrant Agent shall (in the absence of notice to the Company
and/or the Warrant Agent that the Warrant Certificate has been
acquired by a bona fide purchaser) countersign and deliver to the
Registered Holder in lieu thereof a new Warrant Certificate of like
tenor representing an equal aggregate number o of the Warrants.
Applicants for substitute Warrant Certificates shall comply with
such other reasonable regulations and pay such other reasonable
charges as the Warrant Agent may prescribe.
SECTION 8. ADJUSTMENT OF EXERCISE PRICE AND NUMBER
OF COMMON STOCK OR WARRANTS.
The Stock Purchase Price and the number of shares
purchasable upon the exercise of the Warrants shall be subject to
adjustment from time to time upon the occurrence of certain events
described in this Section 8.
8.1 SUBDIVISION OR COMBINATION OF COMMON STOCK. In
case the Company shall at any time (a) subdivide its outstanding
shares of Common Stock into a greater number of shares, (b) combine
its outstanding Common Stock into a smaller number of shares, or
(c) issue any securities in reclassification of its outstanding
Common Stock, then and in each such event, the Stock Purchase Price
in effect immediately prior to such action by the Company shall be
adjusted by multiplying it by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding
immediately prior to such subdivision, combination or
reclassification and the denominator of which shall the number of
shares of Common Stock outstanding immediately after such
subdivision, combination or reclassification.
8.2 STOCK DIVIDED. In case the Company shall at
<PAGE>
any time declare a dividend upon its Common Stock payable solely in
shares of Common Stock, the Stock Purchase in effect immediately
prior to such dividend shall be proportionately reduced.
8.3 NOTICE OF ADJUSTMENT. Upon any adjustment of
the Stock Purchase Price or any increase or decrease in the number
of shares purchasable upon the exercise of the Warrants, the
Company shall give written notice thereof, by first class mail,
postage prepaid, addressed to the Warrant Agent and to each
Registered Holder of the Warrants at the address of such holder as
shown on the Warrant Register. The notice shall be signed by the
Company's chief financial officer and shall state the Stock
Purchase price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price
upon the exercise of the Warrants, setting forth in reasonable
detail the method of calculation and the facts upon which such
calculation is based.
8.4 OTHER NOTICES. If at any time:
(a) the Company shall declare any cash dividend
upon its Common Stock;
(b) the Company shall declare any dividend upon its
Common Stock payable in stock (other than a dividend payable solely
in shares of Common Stock) or make any special dividend or other
distribution to the holders of its Common Stock;
(c) there shall be any consolidation or merger of
the Company with another corporation, or a sale of all or
substantially all of the Company's assets to another corporation;
or
(d) there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
then, in any one or more of said cases, the Company shall give, by
certified or registered mail, postage prepaid, addressed to the
Registered Holder of each Warrant at the address of such Registered
Holder as shown on the Warrant Register, (i) at least 30 days'
prior written notice of the date on which the books of the Company
shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to
vote in respect of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-
up, at least 30 days' written notice of the date when the same
shall take place. Any notice given in accordance with clause (i)
above shall also specify, in the case of any such dividend,
distribution or option rights, the date on which the holders of
Common Stock shall be entitled thereto. Any notice given in
accordance with clause (ii) above shall also specify the date on
with the holders of Common Stock shall be entitled to exchange
their Common Stock for securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding-up, as the case may be.
In the event that the Registered Holder of a Warrant does not
exercise the Warrant prior to the occurrence of an event described
<PAGE>
above, the Registered Holder shall not be entitled to receive the
benefits accruing to existing holders of the Common Stock in such
event, and upon the occurrence of an event described in this
subsection (d) the Warrant shall terminate.
8.5. CHANGES IN COMMON STOCK. In case at any time the
Company shall be party to any transaction (including, without
limitation, a merger, consolidation, sale of all or substantially
all of the Company's assets or recapitalization of the Common
Stock) in which the previously outstanding Common Stock shall be
changed into or exchanged for different securities of the Company
or common stock or other securities of another corporation or
interests in a non-corporate entity or other property (including
cash) or any combination of any of the foregoing (each such
transaction being herein called the "Consummation Date," the
Company shall make, as a condition of the consummation of the
Transaction, lawful and adequate provisions so that each Registered
Holder, upon the exercise of its Warrants at any time on after the
Consummation Date, shall be entitled to receive, and the Warrant
shall thereafter represent the right to receive, in lieu of the
Common Stock issuable upon such exercise prior to the Consummation
Date, the highest amount of securities or other property to which
such holder would actually have been entitled as a stockholder upon
the consummation of the Transaction if such Register Holder had
exercised its Warrants immediately prior thereto (subject to
adjustments from and after the Consummation Date as nearly
equivalent as possible to the adjustments provided for in this
paragraph 8). The provisions of this Section 8.5 shall similarly
apply to successive Transactions.
SECTION 9. FRACTIONAL WARRANTS AND FRACTIONAL
SHARES.
No fractional shares shall be issued upon the exercise of
the Warrants. The Company shall, in lieu of issuing any fractional
shares, pay the holder entitled to such fraction a sum equal to
such fraction multiplied by the Market Value.
SECTION 10. WARRANT HOLDERS NOT DEEMED STOCKHOLDERS.
No holder of a Warrant shall, as such, be entitled to
vote or to consent or to receive notice as a stockholder in respect
of meetings of stockholders for the election of directors of the
Company or any other matters or any rights whatsoever as a
stockholder of the Company. Except for the adjustment to the Stock
Purchase Price pursuant to Section 8.2 in the event of a dividend
on the Common Stock payable in shares of Common Stock, no dividends
or interest shall be payable or accrued in respect of this Warrant
or the interest represented hereby or the shares purchasable
hereunder until, and only to the extent that, the Warrant shall
have been exercised. No provisions hereof, in the absence of
affirmative action by the holder to purchase shares of Common
Stock, and no mere enumeration herein of the rights or privileges
of the Registered Holder of the Warrant, shall give rise to any
<PAGE>
liability of such Registered Holder for the Stock Purchase Price or
as a stockholder of the Company whether such liability is asserted
by the Company or by its creditors.
SECTION 11. RIGHTS OF ACTION. All rights of action with
respect to the Agreement are vested in the respective Registered
Holders of the Warrants, and any Registered Holder of a Warrant,
without consent of the Warrant Agent or of the holder of any other
Warrant, may, in this own behalf and for his own benefit, enforce
against the Company his right to exercise his Warrants for the
purchase of Common Stock in the manner provided in the Warrant
Certificate and this Agreement.
SECTION 12. AGREEMENT OF WARRANT HOLDERS. Every holder
of a Warrant, by his acceptance thereof, consents and agrees with
the Company, the Warrant Agent and every other holder of a Warrant
that:
(a) The Warrants are transferable only on the Warrant
Register by the Registered Holder thereof in person or by his
attorney duly authorized in writing and only if the Warrant
Certificates representing such warrants are surrendered at the
office of the Warrant Agent, duly endorsed or accompanied by a
proper instrument of transfer satisfactory to the Warrant Agent and
the Company in their sole discretion, together with payment of any
applicable transfer taxes; and
(b) The Company and the Warrant Agent may deem and treat
the person in whose name the Warrant Certificate is registered as
the holder and as the absolute, true and lawful owner of the
Warrants represented thereby for all purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice of
knowledge to the contrary, except as otherwise expressly provided
in Section 7.
SECTION 13. REDEMPTION; CANCELLATION OF WARRANT
CERTIFICATE.
13.1. REDEMPTION. All, but not less than all of the
outstanding Warrants may be redeemed at the Redemption Price, at
the option of the Company, at any time, commencing on the
Redemption Date and prior to the Warrant Expiration Date, at the
Corporate Office, upon not less than 30 days prior written notice,
given in accordance with Section 13.2, if the closing bid price of
the Common Stock equals or exceeds $7.00 per share on at least 20
days during a 30 consecutive trading day period ending not more
than 10 days prior to the date of such notice.
13.2. DATE FIXED FOR, AND NOTICE OF, REDEMPTION. In the
event the Company shall elect to redeem all outstanding Warrants,
the Company shall fix a date for the redemption. Notice of
redemption, including the date fixed for redemption shall be mailed
by first class mail, postage prepaid, by the Company to the
registered holders of the Warrants to be redeemed at their last
address as they shall appear on the Warrant Register. Any notice
<PAGE>
mailed in the manner herein provided shall be conclusively presumed
to have been duly given whether or not the Registered Holder
received such notice.
13.3. EXERCISE AFTER NOTICE OF REDEMPTION. The Warrants
may be exercised in accordance with Section 4 of this Agreement at
any time after notice of redemption shall have been given by the
Company pursuant to Section 13.2 hereof and prior to the time and
date fixed for redemption.
SECTION 13.4. CANCELLATION. If the Company shall
purchase or acquire any Warrants, the Warrant Certificate(s)
evidencing the same shall thereupon be delivered to the Warrant
Agent and canceled by it and retired. The Warrant Agent shall also
cancel shares of Common Stock following exercise of any or all of
the Warrants represented thereby or delivered to it for transfer,
split-up, combination or exchange.
SECTION 14. CONCERNING THE WARRANT AGENT. The Warrant
Agent acts hereunder as agent and in a ministerial capacity for the
Company, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not, by issuing and
delivering Warrant Certificates or by any other act hereunder be
deemed to make any representations as to the validity, value or
authorization of the Warrant Certificates or the Warrants
represented thereby or of any securities or other property
delivered upon exercise of any Warrant or whether any stock issued
upon exercise of any Warrant is fully paid and nonassessable.
The Warrant Agent shall not at any time be under any duty
or responsibility to any holder of Warrant Certificates to make or
cause to be made any adjustment of the Stock Purchase Price
provided in this Agreement, or to determine whether any fact exists
which may require any such adjustment, or with respect to the
nature or extent of any such adjustment, when make, or with respect
to the method employed in making the same. It shall not (i) be
liable for any recital or statement of facts contained herein or
for any action taken, suffered or omitted by it in reliance on any
Warrant Certificate or other document or instrument believed by it
in good faith to be genuine and to have been signed or presented by
the proper party or parties, (ii) be responsible for any failure on
the part of the Company to comply with any of its covenants and
obligations contained in this Agreement or in any Warrant
Certificate, or (iii) be liable for any act or omission in
connection with this Agreement except for its own negligence or
wilful misconduct.
The Warrant Agent may at any time consult with counsel
satisfactory to it (who may be counsel for the Company) and shall
incur no liability or responsibility for any action taken, suffered
or omitted by it in good faith in accordance with the opinion or
advice of such counsel.
Any notice, statement, instruction, request, direction,
<PAGE>
order or demand of the Company shall be sufficiently evidenced by
an instrument signed by the Chief Executive Officer or its
Secretary (unless other evidence in respect thereof is herein
specifically prescribed). The Warrant Agent shall not be liable
for any action taken, suffered or omitted by it in accordance with
such notice, statement, instruction, request, direction, order or
demand reasonably believed by it to be genuine.
The Company agrees to pay the Warrant Agent reasonable
compensation for its services hereunder and to reimburse it for its
reasonable expenses hereunder; it further agrees to indemnify the
Warrant Agent and save it harmless against any and all losses,
expenses and Liabilities, including judgements, costs and counsel
fees for anything done or omitted by the Warrant Agent in the
execution of its duties and powers hereunder except losses,
expenses and liabilities arising as a result of the Warrant Agent's
negligence or wilful misconduct.
The Warrant Agent may resign its duties and be discharged
from all further duties and liabilities hereunder (except
liabilities arising as a result of the Warrant Agent's own
negligence or wilful misconduct), after 30 days' prior written
notice tot he Company. At least 15 days prior to the date such
resignation is to become effective, the Warrant Agent shall cause
a copy of such notice of resignation to be mailed to the Registered
Holder of each Warrant Certificate at the Company';s expense. Upon
such resignation, or any inability of the Warrant Agent to act as
such hereunder, the Company shall appoint a new warrant agent in
writing. If the Company shall fail to make such appointment within
a period of 15 days after it has been notified in writing of such
resignation by the resigning Warrant Agent, the Registered Holders
of any Warrant Certificate may apply to any court of competent
jurisdiction for the appointment of a new warrant agent. Any new
warrant agent, whether appointed by the Company or by such a court,
shall be a bank or trust company having a capital and surplus, as
shown by its last published report to its stockholders, of not less
than $10,000,000 or stock transfer company. After acceptance in
writing of such appointment by the new warrant agent is received by
the Company, such new warrant agent shall be vested with the same
powers, rights, duties and responsibilities as if had been
originally named herein as the Warrant Agent, without any further
assurance, conveyance, act or deed; but if for any reason it shall
be necessary or expedient to execute and deliver any further
assurance, conveyance, act or deed, the same shall be done at the
expense of the Company and shall be legally and validly executed
and delivered by the resigning Warrant Agent. Not later than the
effective date of any such appointment the Company shall file
notice thereof with the resigning Warrant Agent and shall forthwith
cause a copy of such notice to be mailed to the Registered Holder
of each Warrant Certificate.
Any corporation into which the Warrant Agent or any new
warrant agent may be converted or merged or any corporation
resulting form any consolidation to which the Warrant Agent or any
<PAGE>
new warrant agent shall be a party or any corporation succeeding to
the trust business of the Warrant Agent shall be a successor
warrant agent under this Agreement without any further act,
provided that such corporation is eligible for appointment as
successor to the Warrant Agent under the provisions of the
preceding paragraph. Any such successor warrant agent shall
promptly cause notice of its succession as warrant agent to be
mailed to the Company and to the Registered Holder of each Warrant
Certificate at the Company's expense.
The Warrant Agent, its subsidiaries and affiliates, and
any of its or their officers or directors, may buy and hold or sell
Warrants or other securities of the Company and otherwise deal with
the Company in the same manner and to the same extent and with like
effects as though it were not the Warrant Agent. Nothing herein
shall preclude the Warrant Agent from acting in any other capacity
for the Company or for any other legal entity.
SECTION 15. MODIFICATION OF AGREEMENT. The Warrant
Agent and the Company may be supplemental agreement make any
changes or corrections in the Agreement 1. That they shall deem
appropriate to cure any ambiguity or to correct any defective or
inconsistent provision or manifest mistake or error herein
contained; or 2. that they may deem necessary or desirable and
which shall not adversely affect the interests of the holders of
Warrant Certificates; provided, however, that this Agreement shall
not otherwise be modified, supplemented or altered in any respect
except with the consent in writing of the Registered Holders of
Warrant Certificate representing not less than 50% of the Warrants
then outstanding; and provided, further, that no change in the
number or nature of the securities purchasable upon the exercise of
any Warrant, of the Purchase Price therefor, or the acceleration of
the Warrant Expiration Date, shall be made without the consent in
writing of the Register Holder of the Warrant Certificate
representing such Warrant, other than such changes as are
specifically prescribed by this Agreement as originally executed or
are made in compliance with applicable law.
SECTION 16. NOTICES. All notices, requests, consents
and other communications hereunder shall be in writing and shall be
deemed to have been made when delivered or mailed first class
registered or certified mail, postage prepaid as follows: if to
the Registered Holder of a Warrant Certificate, at the address of
such Registered Holder as shown in the Warrant Register maintained
by the Warrant Agent; if to the Company, at 5251 Westheimer, Suite
320, Houston, Texas 77056, attention: Chief Executive Officer, or
at such other address as may have been furnished to the Warrant
Agent in writing by the Company; if to the Warrant Agent, at its
Corporate Office.
SECTION 17. REPRESENTATIVES' WARRANTS. Upon exercise of
the "Representatives' Warrants" (as defined in the prospectus
forming part of the Registration Statement), the Representatives,
or the subsequent holders of the Representatives' Warrants
<PAGE>
("Holders") shall receive units of the Company's securities
described in the Representatives' Warrants shall be identical in
all respects to the Warrants, except that such stock purchase
warrants shall not be redeemable by the Company. Notwithstanding
the foregoing at any time prior to a. the Warrant Expiration Date
or b. the redemption of the Warrants in accordance with Section 13
hereof, each of the Holders shall have the right, but not the
obligation, to convert the stock purchase warrants received on
exercise of such Holder's Representatives' Warrants into Warrants
on identical terms as are contained in the Agreement, in which case
the stock purchase warrants received upon exercise of such Holder's
Representatives' Warrants shall become covered by this agreement.
Any such conversion must be requested in a writing to the Company
and the Warrant Agent.
SECTION 18. GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the laws of the State
of New York, without reference to principles of conflict of laws.
SECTION 19. BINDING EFFECT. This Agreement shall be
binding upon and inure to the benefit of the Company and the
Warrant Agent and their respective successors and assigns, and the
holders form time to time of Warrant Certificates. Nothing in this
Agreement is intended or shall be construed to cover upon any other
person any right, remedy or claim, in equity or at law, or to
impose upon any other person any duty, liability or obligation.
SECTION 20. TERMINATION. This Agreement shall terminate
at the close of business on the earlier of the earlier of the
Redemption Date, if all of the Warrants are redeemed, or the
Warrant Expiration Date, except that the Warrant Agent shall
account to the Company for cash held by it and the provisions of
Section 15 hereof shall survive such termination.
SECTION 21. COUNTERPARTS. This Agreement may beexecuted
in several counterparts, which taken together shall constitute a
single document.
IN WITNESS WHEREOF, the parties hereto have caused the
Agreement to be duly executed as of the date first above writing.
OF COUNSEL ENTERPRISES, INC.
By:__________________________
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:__________________________
<PAGE>
OF COUNSEL ENTERPRISES, INC.
1933 EMPLOYEE STOCK OPTION PLAN
1. PURPOSE. The purpose of the Of Counsel Enterprises,
Inc. 1993 Employee Stock Option Plan (the "Plan") is to enable Of
Counsel Enterprises, Inc. (the "Company") and its stockholders to
secure the benefits of common stock ownership by employees of the
Company. The Board of Directors of the Company (the "Board")
believes that the granting of options under the Plan will foster
the Company's ability to attract, retain and motivate those
individuals who will be largely responsible for the profitability
and long-term future growth of the Company.
2. STOCK SUBJECT TO THE PLAN. The Company may issue
and sell a total of 600,000 shares [300,000 shares (after giving
effect to the 299 for 1 stock dividend to be declared by the
Company)] of its common stock, $.01 par value (the "Common Stock"),
pursuant to the Plan. Such shares may be either authorized and
unissued or held by the Company in its treasury. New options may
be granted under the Plan with respect to shares of Common Stock
which are covered by the unexercised portion of an option which has
terminated or expired by its terms, by cancellation or otherwise.
3. ADMINISTRATION. The Plan will be administered by a
committee (the "Committee") consisting of at least two directors
appointed by and serving at the pleasure of the Board. After the
Company's Common Stock is registered under Section 12 of the
Securities Exchange Act of 1934, the members of the Committee shall
be "disinterested directors" within the meaning and for the
purposes of Rule 16(b)-3 under the Securities Exchange Act of 1934.
Subject to the provisions of the Plan, the Committee, acting in its
sole and absolute discretion, will have full power and authority to
grant options under the Plan, to interpret the provisions of the
Plan, to fix and interpret the provisions of option agreements made
under the Plan, to supervise the administration of the Plan, and to
take such other action as may be necessary or desirable in order to
carry out the provisions of the Plan. A majority of the members of
the Committee will constitute a quorum. The Committee may act by
the vote of a majority of its members present at a meeting at which
there is a quorum or by unanimous written consent. The decision of
the Committee as to any disputed question, including questions of
construction, interpretation and administration, will be final and
conclusive on all persons. The Committee will keep a record of its
proceedings and acts and will keep or cause to be kept such books
and records as may be necessary in connection with the proper
administration of the Plan.
4. ELIGIBILITY. Options may be granted under the Plan
to present or future Officers and employees of the Company or a
subsidiary of the Company (a "Subsidiary") within the meaning of
Section 424(f) of the Internal Revenue Code of 1986 (the "Code"),
and to consultants to the Company or a Subsidiary. Subject to the
provisions of the Plan, the Committee may from time to time select
the persons to whom options will be granted, and will fix the
number of shares covered by each such option and establish the
terms and conditions thereof, including,
<PAGE>
without limitation, the exercise price, restrictiOns on
exercisability of the option and/or on the disposition of the
shares of Common Stock issued upon exercise thereof and whether or
not the option is to be treated as an incentive stock option within
the meaning of Section 422 of the Code (an "Incentive Stock
Option").
5. TERMS AND CONDITIONS OF OPTIONS. Each option
granted under the Plan will be evidenced by a written agreement in
a form approved by the Committee. Each such option will be subject
to the terms and conditions set forth in this paragraph and such
additional terms and conditions not inconsistent with the Plan
(and, in the case of an Incentive Stock Option, not inconsistent
with the provisions of the Code applicable thereto) as the
Committee deems appropriate.
(a) OPTION EXERCISE PRICE. In the case of an
option which is not treated as an Incentive Stock Option, the
exercise price per share may not be less than the par value of a
share of Common Stock on the date the option is granted; and, in
the case of an Incentive Stock Option, the exercise price per share
may not be less than 100% of the fair market value of a share of
Common Stock on the date the option is granted (110% in the case of
an optionee who, at the time the option is granted, owns stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company or a Subsidiary (a "ten percent
shareholder")). For purposes hereof, the fair market value of a
share of Common Stock on any date will be equal to the closing sale
price per share as published by a national securities exchange on
which shares of the Common Stock are traded on such date or, if
there is no sale of Common Stock on such date, the average of the
bid and asked prices on such exchange at the closing of trading on
such date or, if shares of the Common Stock are not listed on a
national securities exchange on such date, the closing price or, if
none, the average of the bid and asked prices in the over the
counter market at the close of trading on such date, or if the
Common Stock is not traded on a national securities exchange or the
over the counter market, the fair market value of a share of the
Common Stock on such date as determined in good faith by the
Committee.
(b) OPTION PERIOD. The period during which an
option may be exercised will be fixed by the Committee and will not
exceed 10 years from the date the option is granted (5 years in the
case of an Incentive Stock Option granted to a "ten percent
shareholder").
(c) EXERCISE OF OPTIONS.
(1) GENERAL. No option will become
exercisable unless the person to whom the option was granted
remains in the continuous employ or service of the CompanY or a
Subsidiary for at least six months (or for such longer period as
the Committee may designate) from the date the option is granted.
The Committee may determine and set forth in the option agreement
any additional vesting or other f restrictions on the
exercisability of an option, subject to earlier termination of the
Option as provided herein. All or part of the exercisable portion
of an option may be exercised at any time during the option period.
An option may be exercised
<PAGE>
by transmitting to the Company (a) a written notice specifying the
number of shares to be purchased, and (b) payment of the exercise
price (or, if applicable, delivery of a secured obligation
therefor), together with the amount, if any, deemed necessary by
the F Committee to enable the Company to satisfy its income tax
withholding obligations with respect to such exercise (unless other
arrangements acceptable to the Company are made with respect to the
satisfaction of such withholding obligations).
(2) STOCK REGISTRATION REQUIRED.
Notwithstanding anything in the Plan to the contrary, no option may
be exercised, except by persons who may qualify under applicable
securities laws, unless and until a registration statement covering
the shares of Common Stock issuable upon exercise of options
granted [ hereunder has been filed with and declared effective by
the Securities and Exchange Commission under the Securities Act of
1933, as amended.
(d) PAYMENT OF EXERCISE PRICE. The purchase price
of shares of Common Stock acquired pursuant to the exercise of an
option granted under the Plan may be paid in cash and/or such other
form of payment as may be permitted under the option agreement and
applicable law, including, without limitation, previously-owned
shares of Common Stock. The Committee may permit the payment of
all or a portion of the purchase price in installments (together
with interest) over a period of not more than five years.
(e) RIGHTS AS A STOCKHOLDER. No shares of Common
Stock will be issued in respect of the exercise of an option
granted under the Plan until full payment therefor has been made.
The holder of an option will have no rights as a stockholder with
respect to any shares covered by an option until the date a stock
certificate for such shares is issued to him or her. Except as
otherwise provided herein, no adjustments shall be made for
dividends or distributions of other rights for which the record
date is prior to the date such stock certificate is issued.
(f) NONTRANSFERABILITY OF OPTIONS. No option shall
be assignable or transferrable except upon the optionee's death to
a beneficiary designated by the Optionee in accordance with
procedures established by the Committee or, if no designated
beneficiary shall survive the optionee, pursuant to the optionee's
will or by the laws of descent and distribution. During an
optionee's lifetime, options may be exercised only by the optionee
or the optionee's guardian or legal representative.
(g) TERMINATION OF EMPLOYMENT OR OTHER SERVICE.
UNLESS EXTENDED by the Committee, if an optionee ceases to be
employed by or to perform services for any Subsidiary for any
reason other than death or disability (defined below), then each
outstanding option granted to him or her under the Plan will
terminate on the date three months after the date of such
termination of employment or service, or, if earlier, the date
specified in the option agreement. If an optionee's employment or
service is terminated by reason of the optionee's death or
disability (or if the optionee's employment or service is
terminated by reason of his or her disability and the optionee dies
within one year after such termination of employment or
<PAGE>
service), then, unless extended by the Committee, each outstanding
option granted to the optionee under the Plan will terminate on the
date one year after the date of such termination of employment or
service (or one year after the later death of a disabled optionee)
or, if earlier, the date specified in the option agreement. For
purposes hereof, the term "disability" means the inability of an
optionee to perform the customary duties of his or her employment
or other service for the Company or a Subsidiary by reason of a
physical or mental incapacity which is expected to result in death
or be of indefinite duration.
(h) OTHER PROVISIONS. The Committee may impose
such other conditions with respect to the exercise of options,
including, without limitation, any conditions relating to the
application of federal or state securities laws, as it may deem
necessary or advisable.
(i) MAXIMUM OPTION GRANT. The maximum option grant
which may be made in any calendar year to any officer or employee
of the Company or a Subsidiary shall not cover more than 100,000
shares.
6.CHANGE IN CONTROL; CAPITAL CHANGES.
(a) If any event constituting a "Change- in Control of
the Company" shall occur, all Options granted under the Plan which
are outstanding at the time a Change in Control of the Company
shall occur shall immediately become exercisable. A "Change in
Control of the Company" shall be deemed to occur if (i) there shall
be consummated (x) any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or
pursuant to which shares of the Company's Common Stock would be
converted into cash, securities or other property other than a
merger of the Company in which the holders of the Company's Common
Stock immediately prior to the merger have the same proportionate
ownership of common stock of the surviving corporation immediately
after the merger, or (y) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions)
of all, or substantially all, of the assets of the Company, or (ii)
the stockholders of the Company shall approve any plan or proposal
for liquidation or dissolution of the Company, or (iii) any person
(as such tern is used in Section 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")),
shall become the beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act) of 40% or more of the Company's outstanding
Common Stock other than pursuant to a plan or arrangement entered
into by such person and the Company, or (iv) during any period of
two consecutive years, individuals who at the beginning of such
period constitute the entire Board of Directors shall cease for any
reason to constitute a majority thereof unless the election, or the
nomination for election by the Company's stockholders, of each new
director was approved by a vote of at least two thirds of the
directors then still in office who were directors at the beginning
of the period.
<PAGE>
(b) In the event of any stock split, stock dividend
or similar transaction which increases or decreases the number of
outstanding shares of Common Stock, appropriate adjustment shall be
made by the Board of Directors to the number and option exercise
price per share of Common Stock which may be purchased under any
outstanding Options. In the case of a merger, consolidation or
similar transaction which results in a replacement of the Company's
Common Stock and stock of another corporation but does not
constitute Change in Control of the Company, the Company will make
a reasonable effort, but shall not be required, to replace any
outstanding Options granted under the Plan with comparable options
to purchase the stock of such other corporation, or will provide
for immediate maturity of all outstanding Options, with all Options
not being exercised within the time period specified by the Board
of Directors being terminated.
(c) In the event of any adjustment in the number of
shares covered by any option pursuant to the provisions hereof, any
fractional shares resulting from such adjustment will be
disregarded and each such option will cover only the number of full
shares resulting from the adjustment.
(d) All adjustments under this paragraph 6 shall be
made by the Board, and its determination as to what adjustments
shall be made, and the extent thereof, shall be final, binding and
conclusive.
7. AMENDMENT AND TERMINATION OF THE PLAN. The Board
may amend or terminate the Plan. Except as otherwise provided in
the Plan with respect to equity changes, any amendment which would
increase the aggregate number of shares of Common Stock as to which
options may be granted under the Plan, materially increase the
benefits under the Plan, or modify the class of persons eligible to
receive options under the Plan shall be subject to the approval of
the Company's stockholders. No amendment or termination may affect
adversely any outstanding option without the written consent of the
optionee.
8. NO RIGHTS CONFERRED. Nothing contained herein will
be deemed to give any individual any right to receive an option
under the Plan or to be retained in the employ or service of the
Company or any Subsidiary.
9. GOVERNING LAW. The Plan and each option agreement
shall be governed by the laws of the State of Texas.
10. DECISIONS AND DETERMINATIONS OF COMMITTEE TO BE
FINAL. Except to the extent rights or powers under this Plan are
reserved specifically to the discretion of the Board~ all decisions
and determinations of the Committee are final and binding.
11. TERM OF THE PLAN. The Plan shall be effective as of
the date on which it is adopted by the Board, subject to the
approval of the stockholders of the Company within one year from
the date of adoption by the Board. The Plan will terminate on the
date ten years after
<PAGE>
the date of adoption by the Board, unless sooner terminated by the
Board. The rights of optionees under options outstanding at the
time of the termination of the Plan shall not be affected solely by
reason of the termination and shall continue in accordance with the
terms of the option (as then in effect or thereafter amended).
<PAGE>
OF COUNSEL ENTERPRISES, INC.
STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
1. PURPOSE.
The purpose of this Stock Option Plan for Non-Employee Directors
(the "Plan") of Of Counsel Enterprises, Inc. (the "Corporation") is to
strengthen the Corporation's ability to attract and retain the services of
knowledgeable and experienced persons who, through their efforts and
expertise, can make a significant contribution to the success of the
Corporation's business by serving as members of the Corporation's Board of
Directors and to provide additional incentive for such directors to continue
to work for the best interests of the Corporation and its stockholders
through ownership of its Common Stock, $.01 par value (the "Common Stock").
Accordingly, the Corporation will grant to each non-employee director options
to purchase shares of the Corporation's Common Stock on the terms and
conditions hereafter established.
2. STOCK SUBJECT TO PLAN.
The Corporation may issue and sell a total of 125,000 shares of its
Common Stock pursuant to the Plan. Such shares may be either authorized and
unissued or held by the Corporation in its treasury. New options may be
granted under the Plan with respect to shares of Common Stock which are
covered by the unexercised portion of an option which has terminated or
expired by its terms, by cancellation or otherwise.
3. ADMINISTRATION OF THE PLAN.
The Plan shall be administered by the Board of Directors of the
Corporation (the "Board") or a committee designated by the Board. The
interpretation and construction by the Board of any provisions of the Plan or
of any other matters related to the Plan shall be final. The Board may from
time to time adopt such rules and regulations for carrying out the Plan as it
may deem advisable. No member of the Board shall be liable for any action or
determination made in good faith with respect to the Plan.
The Board of Directors may at any time amend, alter, suspend or
terminate the Plan; provided, however, that any such action would not
impair any option to purchase Common Stock theretofore granted under the
Plan; and provided further that without the approval of the Corporation's
stockholders, no amendments or alterations would be made which would (i)
increase the number of shares of Common Stock that may be purchased by each
non-employee director under the Plan (except as
<PAGE>
permitted by Paragraph 10), (ii) increase the aggregate number of shares of
Common Stock as to which options may be granted under the Plan (except as
permitted by Paragraph 10), (iii) decrease the option exercise price (except
as permitted by Paragraph 10), or (iv) extend the period during which
outstanding options granted under the Plan may be exercised; and provided
further that Paragraph 5 of the Plan shall not be amended more than once
every six months other than to comply with changes in the Internal Revenue
Code of 1986, as amended, or the Employee Retirement Income Security Act of
1974, as amended, or the rules thereunder.
4. ELIGIBILITY.
All non-employee directors of the Corporation shall be eligible to
receive options under the Plan. Receipt of stock options under any other
stock option plan maintained by the Corporation or any subsidiary shall not,
for that reason, preclude a director from receiving options under the Plan.
5. GRANTS.
(i) Except as set forth in Paragraph 5(iii) below, each non-
employee director shall be issued an option to purchase 5,000 shares of the
Corporation's Common Stock (the "Initial Option") on the date of his initial
election or appointment to the Board of Directors (the "Initial Grant Date")
at the following price for the following term and otherwise in accordance
with the terms of the Plan:
(a) The option exercise price per share of Common Stock
shall be the Fair Market Value (as defined below) of the
Common Stock covered by such Initial Option on the Initial
Grant Date.
(b) Except as provided herein, the term of an Initial
Option shall be for a period of ten (10) years from the
Initial Grant Date.
(ii) In addition, each non-employee director shall, on each
anniversary of the Initial Grant Date (the "Additional Grant Date"), if he is
still a non-employee director on such date, be granted an option to purchase
7,500 shares of the Corporation's Common Stock (the "Additional Option") at
the following price for the following term and otherwise in accordance with
the terms of the Plan:
(a) The option exercise price per share of Common Stock
shall be the Fair Market Value (as defined below) of the
Common Stock covered by such Additional Option on the
Additional Grant Date.
(b) Except as provided herein, the term of an Additional
Option shall be for a period of ten (10) years from the
Additional Grant Date.
(iii) In the case of Mr. William Lerner, who was elected a
director in December 1993, an Initial Option to purchase 5,000 shares of the
Corporation's Common
<PAGE>
Stock shall be granted under the Plan as of February 1, 1994, the date of the
Plan's adoption by the Board of Directors, which date shall be the Initial
Grant Date for Mr. Lerner. Such Options may not be exercised unless and
until the stockholders of the Corporation approve the Plan. Mr. James B.
Fleming, who was elected a director prior to the adoption of this Plan by the
Board of Directors, shall not receive an Initial Option but shall receive, as
of the date the stockholders of the Corporation approve the Plan (which date,
in the case of Mr. Fleming, shall be deemed the Additional Grant Date), an
Additional Option and, so long as Mr. Fleming is a director, he shall receive
an Additional Option on each anniversary of the date that the Plan is
approved by the stockholders of the Corporation.
(iv) "Fair Market Value" shall mean, for each Grant Date, (A)
if the Common Stock is listed or admitted to trading on the New York Stock
Exchange (the "NYSE") or the American Stock Exchange (the "ASE"), the average
of the high and low sale price of the Common Stock on such date or, if no
sale takes place on such date, the average of the highest closing bid and
lowest closing asked prices of the Common Stock on such exchange, in each
case as officially reported on the NYSE or the ASE, or (B) if no shares of
Common Stock are then listed or admitted to trading on the NYSE or the ASE,
the average of the high and low sale prices of the Common Stock on such date
on the NASDAQ National Market or, if no shares of Common Stock are then
quoted on the NASDAQ National Market, the average of the closing bid and
highest asked prices of the Common Stock on such date on NASDAQ or, if no
shares of Common Stock are then quoted on NASDAQ, the average of the highest
bid and lowest asked prices of the Common Stock on such date as reported in
the over-the-counter system. If no closing bid and highest asked prices
thereof are then so quoted or published in the over-the-counter market, "Fair
Market Value" shall mean the fair value per share of Common Stock (assuming
for the purposes of this calculation the economic equivalence of all shares
of classes of capital stock), as determined on a fully diluted basis in good
faith by the Board, as of a date which is 15 days preceding such Grant Date.
(v) Options granted hereunder shall not be "incentive stock
options" within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended.
6. REGULATORY COMPLIANCE AND LISTING.
The issuance or delivery of any Option may be postponed by the
Corporation for such period as may be required to comply with the Federal
securities laws, any applicable listing requirements of any applicable
securities exchange and any other law or regulation applicable to the
issuance or delivery of such Options, and the Corporation shall not be
obligated to issue or deliver any Options if the issuance or delivery of such
options would constitute a violation of any law or any regulation of any
governmental authority or applicable securities exchange.
<PAGE>
7. RESTRICTIONS ON EXERCISABILITY AND SALE.
(i) Subject to Paragraph 7(ii) below, each Option
granted under the Plan shall become exercisable as to 100% of the number of
shares issuable under such Option on the date which is one year after the
Grant Date of such Option.
(ii) Notwithstanding anything herein to the contrary, if the
shares of Common Stock issuable upon exercise of Options granted under the
Plan have not been registered under the Securities Act of 1933, as amended,
the Board may condition the exercisability of Options upon compliance with
applicable federal and state securities laws.
8. CESSATION AS DIRECTOR.
In the event that the holder of an Option granted pursuant to the
Plan shall cease to be a director of the Corporation for any reason such
holder may exercise any portion of the Option that is exercisable by him at
the time he ceases to be a director of the Corporation, but only to the
extent such Option is exercisable as of such date, within six months after
the date he ceases to be a director of the Corporation.
9. DEATH.
In the event that a holder of an Option granted pursuant to the
Plan shall die, his estate, personal representative or beneficiary may
exercise any portion of the Option that was exercisable by the deceased
Optionee at the time of his death, but only to the extent such Option is
exercisable as of such date, within twelve months after the date of his
death.
10. STOCK SPLITS, MERGERS, ETC.
In the event of any stock split, stock dividend or similar
transaction which increases or decreases the number of outstanding shares of
Common Stock, appropriate adjustment shall be made by the Board of Directors,
whose determination shall be final, to the number and option exercise price
per share of Common Stock which may be purchased under any outstanding
Options. In the case of a merger, consolidation or similar transaction which
results in a replacement of the Corporation's Common Stock with stock of
another corporation, the Corporation will make a reasonable effort, but shall
not be required, to replace any outstanding Options granted under the Plan
with comparable options to purchase the stock of such other corporation, or
will provide for immediate maturity of all outstanding Options, with all
Options not being exercised within the time period specified by the Board of
Directors being terminated.
<PAGE>
11. TRANSFERABILITY.
Options are not assignable or transferable, except upon the
optionholder's death to a beneficiary designated by the optionee in
accordance with procedures established by the Board or, if no designated
beneficiary shall survive the optionholder, pursuant to the optionholder's
will or by the laws of descent and distribution, to the extent set forth in
Paragraph 9, and during the optionholder's lifetime, may be exercised only by
him.
12. EXERCISE OF OPTIONS.
An optionholder electing to exercise an Option shall give written
notice to the Corporation of such election and of the number of shares of
Common Stock that he has elected to acquire. An optionholder shall have no
rights of a stockholder with respect to shares of Common Stock covered by his
Option until after the date of issuance of a stock certificate to him upon
partial or complete exercise of his option.
13. PAYMENT.
The Option exercise price shall be payable in cash, check or in
shares of Common Stock upon the exercise of the Option. If the shares of
Common Stock are tendered as payment of the Option exercise price, the value
of such shares shall be the Fair Market Value as of the date of exercise. If
such tender would result in the issuance of fractional shares of Common
Stock, the Corporation shall instead return the difference in cash or by
check to the optionholder.
14. OBLIGATION TO EXERCISE OPTION.
The granting of an Option shall impose no obligation on the
director to exercise such option.
15. CONTINUANCE AS DIRECTOR.
Nothing in the Plan shall be deemed to create any obligation on the
part of the Board to nominate any director for reelection by the
Corporation's stockholders.
<PAGE>
16. TERM OF PLAN.
The Plan shall be effective as of the date on which it is adopted
by the Board, subject to the approval of the stockholders of the Corporation
within one year from the date of adoption by the Board. The Plan will
terminate on the date ten years after the date of adoption by the Board,
unless sooner terminated by the Board. The rights of optionees under options
outstanding at the time of the termination of the Plan shall not be affected
solely by reason of the termination and shall continue in accordance with the
terms of the option (as then in effect or thereafter amended).
DRAFT
Dated ___________ __, 1996
Supplement to Prospectus dated April 18, 1996
ELFUN FUNDS
Each of the Funds is now authorized to invest in GEI
Short-Term Investment Fund (the "Investment Fund"), an
investment fund advised by General Electric Investment
Management Incorporated ("GEIM") created specifically to
serve as a vehicle for the collective investment of cash
balances of the Funds (other than the Money Market Fund) and
other accounts advised by either GEIM or General Electric
Investment Corporation ("GEIC").
To reflect the foregoing and in connection therewith to
clarify the types of money market instruments in which the
Funds are authorized to invest directly, the first paragraph
on page 12 of the prospectus under "Additional Investments -
- - Money Market Instruments" has been deleted in its entirety
and now reads as follows:
Money Market Instruments. Each Fund, other than the
Money Market Fund, may invest only in the following
types of money market instruments: (i) securities
issued or guaranteed by the U.S. Government or one of
its agencies or instrumentalities, (ii) debt
obligations of banks, savings and loan institutions,
insurance companies and mortgage bankers, (iii)
commercial paper and notes, including those with
variable and floating rates of interest, (iv) debt
obligations of foreign branches of U.S. banks, U.S.
branches of foreign banks and foreign branches of
foreign banks, (v) debt obligations issued or
guaranteed by one or more foreign governments or any of
their political subdivisions, agencies or
instrumentalities, including obligations of
supranational entities, (vi) debt securities issued by
foreign issuers and (vii) repurchase agreements.
<PAGE>
Each Fund, other than the Money Market Fund, may also
invest up to 25% of its assets in the Investment Fund,
a fund created specifically to serve as a vehicle for
the collective investment of cash balances of the Funds
(other than the Money Market Fund) and other accounts
advised by General Electric Investment Management
Incorporated ("GEIM")<F1> or GEIC. The Investment Fund
invests exclusively in the money market instruments
described in (1) through (vii) above. The Investment
Fund is advised by GEIM. No advisory fee is charged by
GEIM to the Investment Fund, nor will the Funds incur
any sales charge, redemption fee, distribution fee or
service fee in connection with its investments in the
Investment Fund.
[FN]
<F1>
GEIM will have to be defined for the first time here rather
than in the "General" section under "Risk Factors and
Special Considerations."
[Letterhead of Gordon Altman Butowsky Weitzen Shalov & Wein]
August 23, 1996
Olsten Corporation
175 Broad Hollow Road
Melville, NY 11747-8905
Re: Olsten Corporation -- Post-Effective Amendment
Ladies and Gentlemen::
In connection with the Post Effective Amendment No. 1 on
Form S-3 to the Registration Statement on Form S-4 ("Registration
Statement") filed under the Securities Act of 1933, as amended
("1933 Act"), we hereby consent to the reference to us under the
caption "Legal Matters" in the Prospectus forming a part of the
Registration Statement. In giving this consent, we do not thereby
admit that we are within the category of persons whose consent is
required under Section 7 of the 1933 Act or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ GORDON, ALTMAN, BUTOWSKY, WEITZEN
SHALOV & WEIN
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in
the Post-Effective Amendment No. 1 on Form S-3 to the
Registration Statement on Form S-4 (File No. 333-7867) of
our report dated February 7, 1996, on our audits of the
consolidated financial statements of Olsten Corporation and
Subsidiaries as of December 31, 1995 and January 1, 1995,
and for each of the three years in the period ended December
31, 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 caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
New York, New York
August 22, 1996
