<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 28, 1998
Commission File No. 0-3532
OLSTEN CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-2610512
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
175 Broad Hollow Road, Melville, New York 11747-8905
- ----------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (516) 844-7800
--------------
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
--- ---
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class Outstanding at August 6, 1998
- ------------------------------------ -----------------------------
Common Stock, $.10 par value 68,022,910 shares
Class B Common Stock, $.10 par value 13,301,733 shares
<PAGE>
INDEX
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Page No.
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PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheets - June 28, 1998 (Unaudited) and
December 28, 1997 2
Consolidated Statements of Income (Unaudited) - Quarters and Six
Months Ended June 28, 1998 and June 29, 1997, respectively 3
Consolidated Statements of Cash Flows (Unaudited) - Six Months
Ended June 28, 1998 and June 29, 1997, respectively 4
Notes to Consolidated Financial Statements (Unaudited) 5-6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 7-9
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 10
Item 4. Submission of Matters to a Vote of Security Holders 10-11
Item 5. Other Information 11-13
Item 6. Exhibits and Reports on Form 8-K 13
SIGNATURES 14
<PAGE>
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements.
Olsten Corporation
Consolidated Balance Sheets
(In thousands, except share amounts)
June 28, 1998 December 28, 1997
------------- -----------------
ASSETS (Unaudited)
CURRENT ASSETS:
Cash $ 18,366 $ 84,810
Receivables, net 918,803 847,419
Other current assets 92,214 90,715
--------- ---------
Total current assets 1,029,383 1,022,944
FIXED ASSETS, NET 197,457 186,347
INTANGIBLES, NET 575,343 534,284
OTHER ASSETS 9,556 6,626
--------- ---------
$1,811,739 $1,750,201
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accrued expenses $ 170,156 $ 152,239
Payroll and related taxes 100,675 86,071
Accounts payable 64,950 55,851
Insurance costs 35,939 41,270
--------- ---------
Total current liabilities 371,720 335,431
LONG-TERM DEBT 534,501 461,178
OTHER LIABILITIES 99,713 111,815
SHAREHOLDERS' EQUITY:
Common stock $.10 par value;
authorized 110,000,000 shares;
issued 68,020,850 and 68,151,708
shares, respectively 6,802 6,815
Class B common stock $.10 par value;
authorized 50,000,000 shares;
issued 13,303,790 and 13,157,617
shares, respectively 1,330 1,316
Additional paid-in capital 447,442 447,297
Retained earnings 358,744 390,786
Accumulated other comprehensive income (8,513) (4,437)
--------- ---------
Total shareholders' equity 805,805 841,777
--------- ---------
$1,811,739 $1,750,201
========= =========
See notes to consolidated financial statements.
<PAGE>
<TABLE>
Olsten Corporation
Consolidated Statements of Income
(In thousands, except share amounts)
(Unaudited)
<CAPTION>
Second Quarter Ended Six Months Ended
------------------------ ------------------------
<C> <C> <C> <C>
June 28, June 29, June 28, June 29,
1998 1997 1998 1997
Service sales, franchise fees,
management fees and other income $1,126,142 $1,014,387 $2,176,084 $1,965,238
Cost of services sold 883,017 744,205 1,666,902 1,440,097
--------- --------- --------- ---------
Gross profit 243,125 270,182 509,182 525,141
Selling, general and administrative
expenses 286,591 221,756 523,451 440,727
Interest expense, net 7,476 5,201 13,382 9,349
--------- --------- --------- ---------
Income (loss) before income taxes and
minority interests (50,942) 43,225 (27,651) 75,065
Income tax charge (benefit) (19,740) 16,858 (10,714) 29,276
--------- --------- --------- ---------
Income (loss) before minority interests (31,202) 26,367 (16,937) 45,789
Minority interests 2,262 1,038 3,726 1,293
--------- --------- --------- ---------
Net income (loss) $ (33,464) $ 25,329 $ (20,663) $ 44,496
========= ========= ========= =========
SHARE INFORMATION:
Basic earnings (loss) per share:
Net income (loss) $ (.41) $ .31 $ (.25) $ .55
========= ========= ========= =========
Average shares outstanding 81,346 81,212 81,361 81,186
========= ========= ========= =========
Diluted earnings (loss) per share:
Net income (loss) (.41) .31 (.25) .55
========= ========= ========= =========
Average shares outstanding 81,346 83,127 81,361 83,070
========= ========= ========= =========
</TABLE>
See notes to consolidated financial statements.
<PAGE>
<TABLE>
Olsten Corporation
Consolidated Statements of Cash Flows
(In thousands)
(Unaudited)
<CAPTION>
Six Months Ended
------------------------------------
June 28, 1998 June 29, 1997
--------------- ---------------
<C> <C>
OPERATING ACTIVITIES:
Net income (loss) $ (20,663) $ 44,496
Adjustments to reconcile net income
(loss)to net cash used in operating activities:
Depreciation and amortization 32,512 25,161
Changes in assets and liabilities,
net of effects from acquisitions and dispositions:
Accounts receivable and other current assets (70,907) (95,579)
Current liabilities 41,803 5,221
Other, net (8,775) 4,871
-------- -------
NET CASH USED IN OPERATING ACTIVITIES (26,030) (15,830)
-------- -------
INVESTING ACTIVITIES:
Acquisitions of businesses including franchises, net of
cash acquired (60,408) (106,492)
Purchases of fixed assets (35,146) (38,192)
Sale of investment securities -- 9,415
-------- -------
NET CASH USED IN INVESTING ACTIVITIES (95,554) (135,269)
-------- -------
FINANCING ACTIVITIES:
Net proceeds from issuance of notes 133,806 --
Net(repayments of) proceeds from line of credit agreements (60,862) 79,746
Cash dividends (11,378) (11,362)
Repayment of notes payable (6,202) --
Issuances of common stock under stock plans 54 681
-------- -------
NET CASH PROVIDED BY FINANCING ACTIVITIES 55,418 69,065
-------- -------
EFFECT OF EXCHANGE RATE CHANGES ON CASH (278) --
-------- -------
NET DECREASE IN CASH (66,444) (82,034)
CASH AT BEGINNING OF PERIOD 84,810 105,725
-------- -------
CASH AT END OF PERIOD $ 18,366 $ 23,691
======== =======
NON-CASH TRANSACTIONS:
Assets acquired through the issuance of a note $ -- $ 19,535
Issuance of restricted stock $ -- $ 6,437
</TABLE>
See notes to consolidated financial statements.
<PAGE>
Olsten Corporation
Notes to Consolidated Financial Statements
(Unaudited)
1. Accounting Policies
-------------------
The consolidated financial statements have been prepared by Olsten
Corporation (the "Company") pursuant to the rules and regulations of the
Securities and Exchange Commission and, in the opinion of management,
include all adjustments necessary for a fair presentation of results of
operations, financial position and cash flows for each period presented.
Results for interim periods are not necessarily indicative of results
for a full year. The year end balance sheet data was derived from
audited financial statements, but does not include all disclosures
required by generally accepted accounting principles.
2. Long-Term Debt
--------------
In May 1998, the Company's wholly-owned subsidiary, Olsten International
B.V. issued, in a public offering, 800 million French Franc
(approximately U.S. $133 million), 6 percent Euronotes due 2008, which
are fully guaranteed by the Company. The net proceeds were used to repay
existing indebtedness and for general financing purposes of the issuer
and its related companies.
On July 30, 1998, the Company's revolving credit agreement, dated August
9, 1996, was amended to revise the provision related to the maintenance
of various financial ratios and covenants.
Interest expense, net, consists primarily of interest on long-term debt
for the quarter of $8.4 million in 1998 and $5.9 million in 1997, offset
by interest income from investments of $949 thousand and $729 thousand
for 1998 and 1997, respectively. Interest expense for the six months
was $15.2 million, net of interest income of $1.8 million in 1998 and
$11.5 million, net of interest income of $2.2 million in 1997.
3. Acquisitions
------------
Under the terms of the 1997 purchase agreement for Sogica S.A., an
additional payment of approximately $31 million, related to their 1997
results of operations, was paid in the second quarter of 1998. An
additional purchase price payment will be required in the year 2000,
calculated based upon the average net income for the three fiscal years
ended December 31, 1999. The Company is obligated in the year 2000 to
purchase the remaining Sogica S.A. shares at a price to be determined by
a multiple ranging from an upper limit of 16 and a lower limit of 10,
applied to average net income for the two fiscal years ended 1998 and
1999.
During the first six months of 1998, the Company purchased various
businesses for $29 million in cash. Included in these acquisitions was
the purchase of a Danish company, Attention Personalservice A/S, several
small acquisitions in France and Sweden, as well as the acquisition in
Brazil of Top Services S.A. All acquisitions have been accounted for by
the purchase method of accounting.
<PAGE>
4. Adjustments and One-Time Charges
--------------------------------
The results for the second quarter include adjustments and one-time
charges of $66 million ($40 million, net of tax) or $.50 per share,
related primarily to the restructuring of the Company's home health
business as follows:
* In response to new Medicare reimbursement methodology under the
Interim Payment System, the Company's office closings and
consolidations are causing it to record non-recurring charges and
adjustments to selling, general and administrative expenses of $37
million ($23 million, net of tax) relating to lease payments, employee
severance, professional fees and related costs, and an increase in the
allowance for doubtful accounts.
* In addition, the Company recorded a reduction in revenues of $14
million ($8 million, net of tax) in anticipation of lower Medicare
reimbursements resulting from the new per-visit and per-beneficiary
limits that have been imposed by Medicare under the Interim Payment
System.
* The Company also recorded a charge to cost of sales of $15 million ($9
million, net of tax) to reserve for costs associated with the
increased utilization of services under several of the Company's
capitated contracts with managed care customers.
5. Adoption of SFAS 130, "Reporting Comprehensive Income"
------------------------------------------------------
As of December 29, 1997, the Company adopted Statement of Financial
Accounting Standards No. 130, "Reporting Comprehensive Income" ("SFAS
130"). SFAS 130 establishes new rules for the reporting and display of
comprehensive income and its components; however, the adoption of this
Statement had no impact on the Company's net income or shareholders'
equity. SFAS 130 requires unrealized gains or losses on the Company's
foreign currency translation adjustments, which prior to adoption were
reported separately in shareholders' equity, to be included in other
comprehensive income. Prior year financial statements have been
reclassified to conform to the requirements of SFAS 130.
During the second quarter and six months of 1998, total comprehensive
income (loss) amounted to $(36.5) million and $(24.7) million,
respectively, and $27.9 million and $48.1 million for the same periods
in 1997.
6. Subsequent Event
----------------
In July 1998, the Board of Directors authorized the repurchase, at
management's discretion, of up to 4 million shares of the Company's $.10
par value common stock. To date, approximately 46 thousand shares have
been repurchased aggregating $455 thousand.
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Results of Operations
- ---------------------
The results of operations for the second quarter include adjustments and
one-time charges of $66 million ($40 million, net of tax), or $.50 per share
related primarily to the restructuring of the Company's home health business as
follows:
* In response to new Medicare reimbursement methodology under the Interim
Payment System, the Company's office closings and consolidations are causing
it to record non-recurring charges and adjustments to selling, general and
administrative expenses of $37 million ($23 million, net of tax) relating to
lease payments, employee severance, professional fees and related costs, and
an increase in the allowance for doubtful accounts.
* In addition, the Company recorded a reduction in service sales of $14 million
($8 million, net of tax) in anticipation of lower Medicare reimbursements
resulting from the new per-visit and per-beneficiary limits that have been
imposed by Medicare under the Interim Payment System.
* The Company also recorded a charge to cost of services sold of $15 million ($9
million, net of tax) to reserve for costs associated with the increased
utilization of services under several of the Company's capitated contracts
with managed care customers.
Excluding the effect of these adjustments and one-time charges, net income for
the second quarter of 1998 decreased 73 percent to $6.9 million, or $.09 per
share, compared to $25.3 million, or $.31 per share for last year's second
quarter. Net income for the first six months was $19.8 million, or $.24 per
share, a 56 percent decrease, excluding the effect of these adjustments and
one-time charges, compared to $44.5 million, or $.55 per share, reported in
1997.
Revenues increased $112 million, or 11 percent, to $1.1 billion for the second
quarter, as compared to $1 billion for last year's second quarter. Revenues
increased $211 million, or 11 percent, to $2.2 billion for the first six months
of 1998, as compared to $2 billion for the comparable period of 1997.
Staffing Services reported increased revenues of 25 percent to $809 million for
the second quarter and 24 percent to $1.5 billion for the six months over last
year's second quarter and six month periods of $647 million and $1.2 billion,
respectively. Acquisitions accounted for approximately 13 percent of the second
quarter revenue growth, while European operations contributed 6 percent
reflecting industry growth and favorable economic conditions. The remaining 6
percent growth is primarily attributable to internal growth in North American
information technology and professional services operations, offset by a decline
in traditional services due to lower hourly volume.
<PAGE>
Health Services' revenues declined 14 percent to $315 million for the second
quarter, and 11 percent to $647 million for the six months, compared to $365
million and $724 million for the same periods in 1997. The decline in Health
Services' revenues was due to decreases in both Medicare nursing visits and in
management fees generated by hospital-based home health agencies. The Medicare
Interim Payment System as indicated above, continued Federal Government focus on
the home care industry and the reluctance of physicians to refer patients to
home care have negatively impacted the Medicare segment of both businesses. An
overall increase in Network Services, Infusion Services and other Health
Services' business lines partly offset the above.
Cost of services sold increased $139 million, or 19 percent, to $883 million for
the second quarter and 16 percent to $1.7 billion for the six months of 1998,
from $744 million and $1.4 billion for the same periods in 1997 due primarily to
the growth in revenues and increased costs associated with the utilization of
services under several of the Company's capitated contracts. Gross profit
margins, as a percentage of revenues, decreased to 21.6 percent for the second
quarter and 23.4 percent for the six months from 26.6 percent for last year's
second quarter and 26.7 percent for last year's six months. Staffing Services'
gross profit margins increased primarily as a result of profit improvements in
Europe, with improved utilization and bill rates, particularly in Germany,
offset by a decline in the U.S. Information Technology division related to an
increased level of large contracts which are at lower margins. Health Services'
gross profit margins decreased due to the decline in Medicare and health
management volume, the Medicare Interim Payment System and increased costs
related to the servicing of capitated contracts.
Selling, general and administrative expenses increased $65 million and $83
million, or 29.2 percent and 18.8 percent, to $287 million and $528 million for
the second quarter and six months, from $222 million and $441 million for the
same periods in 1997. The increases in the quarter and six months result from
significant investments in new systems, infrastructure and the development of
professional services divisions. As a percentage of revenues, such expenses
increased to 25.5 percent from 21.9 percent for the quarter and increased to 24
percent from 22.4 percent for the six months.
Net interest expense was $7.5 million and $5.2 million for the second quarters
of 1998 and 1997, respectively, and $13.4 million and $9.3 million for the six
month periods of 1998 and 1997. Net interest primarily reflected borrowing costs
on long-term debt offset by interest income on investments. The increase
resulted from interest expense incurred as the Company continued to fund its
acquisition program, as well as the financing of accounts receivable.
Liquidity and Capital Resources
- -------------------------------
Working capital decreased from $688 million at December 28, 1997 to $658 million
at June 28, 1998. For the six month period, net cash decreased $66 million
primarily resulting from the $133 million in proceeds received from the issuance
of the 6 percent Euronotes by the Company's subsidiary, Olsten International
B.V., offset by a $155 million pay down of the line of credit agreement, the
acquisition of businesses and capital expenditures; and a $26 million decrease
in cash from operations. Accounts receivable and other current assets increased
$71 million for the six months. This increase is primarily attributed to revenue
growth, acquisitions, as well as consolidated billing requirements of large
corporate accounts in the Staffing Services division, coupled with revenue
growth of managed care and infusion therapy accounts, which impacted the timing
of the collection process.
<PAGE>
The Company has a revolving credit agreement with a consortium of eleven banks
for up to $400 million in borrowings and letters of credit. As of June 28, 1998,
there were $115 million in borrowings outstanding and $47 million in standby
letters of credit. On July 30, 1998, the Company's revolving credit agreement,
dated August 9, 1996, was amended to revise the provisions related to the
maintenance of various financial ratios and covenants. The Company has invested
available funds in short-term, interest-bearing investments. The Company
believes that its levels of working capital, liquidity and available sources of
funds are sufficient to support present operations and to continue to fund
future growth and business opportunities as the Company increases its scope of
services.
OTHER
- -----
INFORMATION CONTAINED HEREIN, OTHER THAN HISTORICAL INFORMATION, SHOULD BE
CONSIDERED FORWARD-LOOKING AND IS SUBJECT TO VARIOUS RISK FACTORS AND
UNCERTAINTIES. FOR INSTANCE, THE COMPANY'S STRATEGIES AND OPERATIONS INVOLVE
RISKS OF COMPETITION, CHANGING MARKET CONDITIONS, CHANGES IN LAWS AND
REGULATIONS AFFECTING THE COMPANY'S INDUSTRIES AND NUMEROUS OTHER FACTORS
DISCUSSED IN THIS DOCUMENT AND IN OTHER COMPANY FILINGS WITH THE SECURITIES AND
EXCHANGE COMMISSION. ACCORDINGLY, ACTUAL RESULTS MAY DIFFER MATERIALLY FROM
THOSE PROJECTED IN ANY FORWARD-LOOKING STATEMENTS CONTAINED HEREIN.
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
------------------
By Order of the Magistrate Judge dated July 10, 1998, the United States District
Court for the Eastern District of New York adhered to its May 4, 1998 Order (a)
consolidating the four previously disclosed purported class action lawsuits
(Weichman, Goldman, Waldman and Cannold) pending against Olsten and certain of
its officers and directors (collectively, the "Class Action"), (b) appointing a
Lead Plaintiff and (c) selecting Plaintiffs' Lead Counsel. By Order entered on
July 27, 1998, the Court set a schedule for the filing of a Consolidated Amended
Complaint and the service and filing of papers in connection with defendants'
anticipated motion to dismiss such Complaint. While the Company is unable at
this time to assess the probable outcome of the Class Action or the materiality
of the risk of loss in connection therewith (given the preliminary stage of the
Class Action and the fact that the Consolidated Amended Complaint has not yet
been served), the Company believes that it acted responsibly with respect to its
shareholders and intends to vigorously defend the Class Action.
Item 4. Submission of Matters to a Vote of Security Holders.
----------------------------------------------------
(a) The Annual Meeting of Shareholders of the Company was held on
May 5, 1998.
(c) (i) At the Annual Meeting, shareholders elected directors of the
Company by votes as follows:
Name of Director Votes For Votes Withheld
---------------- ------------ --------------
Victor F. Ganzi 121,417,280 63,340
Stuart R. Levine 121,417,100 63,520
Frank N. Liguori 121,415,310 65,310
John M. May 55,890,018 1,378,040
Miriam Olsten 121,412,170 68,450
Stuart Olsten 121,416,120 64,500
Richard J. Sharoff 121,417,280 63,340
Raymond S. Troubh 55,784,100 1,483,958
Josh S. Weston 55,823,337 1,444,721
(ii) At the Annual Meeting, shareholders voted upon a proposal to
approve amendments to the Company's 1994 Stock Incentive Plan.
The votes were as follows:
Votes For Votes Against Abstentions Broker Non-Votes
----------- ------------- ----------- ----------------
170,088,311 8,396,491 245,371 18,505
(iii) At the Annual Meeting, shareholders voted upon a proposal to
approve an amendment to the Company's 1990 Non-Qualified Stock
Option Plan for Non-Employee Directors and Consultants. The
votes were as follows:
Votes For Votes Against Abstentions Broker Non-Votes
----------- ------------- ----------- ----------------
174,295,113 4,218,691 233,106 1,768
<PAGE>
(iv) At the Annual Meeting, shareholders voted upon a proposal to
approve the Company's Stock & Deferred Compensation Plan for
Non-Employee Directors. The votes were as follows:
Votes For Votes Against Abstentions Broker Non-Votes
----------- ------------- ----------- ----------------
175,662,104 2,835,673 241,496 9,405
(v) At the Annual Meeting, shareholders voted upon a proposal to
ratify and approve the appointment by the Board of Directors of
Coopers & Lybrand L.L.P. as independent accountants for the
Company for its 1998 fiscal year. The votes were as follows:
Votes For Votes Against Abstentions Broker Non-Votes
----------- ------------- ----------- ----------------
178,083,925 563,112 99,911 1,730
Item 5. Other Information.
------------------
Government Investigations. The Company's home health care business is subject
to extensive federal and state regulations which govern, among other things,
Medicare, Medicaid, CHAMPUS and other government-funded reimbursement
programs, reporting requirements, certification and licensure standards for
certain home health agencies and, in some cases, certificate-of-need and
pharmacy-licensing requirements. The Company is also subject to a variety of
federal and state regulations which prohibit fraud and abuse in the delivery
of health care services, including, but not limited to, prohibitions against
the offering or making of direct or indirect payments for the referral of
patients. As part of the extensive federal and state regulation of the
Company's home health care business, the Company is subject to periodic
audits, examinations and investigations conducted by or at the direction of
governmental investigatory and oversight agencies. Violation of the applicable
federal and state regulations can result in a health care provider's being
excluded from participation in the Medicare, Medicaid and/or CHAMPUS programs,
and can subject the provider to civil and/or criminal penalties.
The Company continues to cooperate with the previously disclosed health care
industry investigations being conducted by certain governmental agencies
(collectively, the "Healthcare Investigations").
Among the Healthcare Investigations with which Olsten continues to cooperate
is that being conducted into the Company's preparation of Medicare cost
reports by the Office of Investigations section of the Office of Inspector
General (an agency within the U.S. Department of Health & Human Services) and
the U.S. Department of Justice.
The Company also continues to cooperate with the U.S. Department of Justice
and other federal agencies investigating the relationship between Columbia/HCA
Healthcare Corporation and Olsten in connection with the purchase, sale and
operation of certain home health agencies which are now owned by Columbia/HCA
and managed under contract by Olsten Health Management, a unit of Olsten
Health Services that provides management services to hospital-based home
health agencies.
Olsten continues to cooperate with various state and federal agencies,
including the U.S. Department of Justice, the Office of the Attorney General
of New Mexico and the New Mexico Health Care Anti-Fraud Task Force ("Task
<PAGE>
Force"), in connection with their investigations into certain health care
practices of Quantum Health Resources ("Quantum"). Among the matters into
which those agencies are inquiring are allegations of improper billing and
fraud against various federally-funded medical assistance programs on the part
of Quantum and its post-acquisition successor, the Infusion Therapy Services
division of Olsten Health Services. Most of the time period which the Company
understands to be at issue in the Task Force investigation predates Olsten's
June 1996 acquisition of Quantum.
The Company believes that certain of the Healthcare Investigations may have
been triggered by or given rise to lawsuits under federal and/or state
whistleblower statutes against Olsten and/or Quantum.
Notwithstanding the Company's continuing cooperation with the Healthcare
Investigations, Olsten has been notified that it is a target of a federal
grand jury investigation by the U.S. Attorney's Office for the Southern
District of Florida, which investigation Olsten believes focuses upon the
Company's above-referenced relationship with Columbia/HCA in connection with
the purchase, sale and operation of certain home health agencies. In addition
to the U.S. Attorney's Office for the Southern District of Florida, other
agencies of the federal and/or state governments may regard the Company and/or
certain of its employees as subjects or targets of one or more of the other
Healthcare Investigations. An indictment of Olsten in connection with any one
of the Healthcare Investigations could result in the suspension of payments to
Olsten under the Medicare, Medicaid and/or CHAMPUS programs. If Olsten were to
be found to have violated any of the laws and regulations at issue in the
Healthcare Investigations, the Company could be subjected to a variety of
sanctions, including substantial monetary fines, civil and/or criminal
penalties and exclusion from participation in the Medicare, Medicaid and/or
CHAMPUS programs. While the Company is unable at this time to predict the
ultimate outcome of the Healthcare Investigations, the above-referenced
suspension of payments or the imposition of any one of the foregoing sanctions
could have a material adverse effect upon the Company's financial position and
results of operations.
Shareholder Proposals. As the Company indicated in its Proxy Statement dated
April 9, 1998 relating to its 1998 Annual Meeting of Shareholders, if a
shareholder intends to present a proposal at the Company's 1999 Annual Meeting
of Shareholders and desires that the proposal be included in the Company's
proxy statement and form of proxy for that meeting, the proposal must be
received by the Company by December 10, 1998. As to any proposal that a
shareholder intends to present at the 1999 Annual Meeting of Shareholders
without including such proposal in the Company's proxy statement relating to
its 1999 Annual Meeting of Shareholders, the proxies named in management's
proxy for that meeting will be entitled to exercise their discretionary
authority on that proposal unless the Company receives notice of the matter to
be proposed not later than February 23, 1999. Even if proper notice is
received on or before February 23, 1999, the proxies named in management's
proxy for that meeting may still exercise their discretionary authority as to
such matter by advising shareholders of such proposal and how they intend to
exercise their discretion to vote on such matter, unless the shareholder
making the proposal solicits proxies with respect to such proposal in
accordance with Rule 14a-4(c)(2) of the Securities Exchange Act of 1934.
<PAGE>
Item 6. Exhibits and Reports on Form 8-K.
---------------------------------
(a) The following exhibits are filed herewith:
Exhibit 3 - By-Laws of the Company.
Exhibit 10.1 - Amendment No. 3, dated as of July 30, 1998, to
Credit Agreement, dated as of August 9, 1996, as
amended, among the Company, the Banks signatory
thereto and The Chase Manhattan Bank, as Agent,
covering $400 million credit facility.
Exhibit 10.2 - Fiscal Agency Agreement, dated May 6, 1998,
relating to French Franc 800,00,000 6% Notes due
2008 guaranteed by the Company.
Exhibit 27 - Financial Data Schedule.
(b) Reports on Form 8-K.
--------------------
(i) The Company filed a report on Form 8-K, dated March 30, 1998,
reporting in Item 5, Other Events, that the Company had
released a press release dated March 27, 1998, which was
filed as an Exhibit.
(ii) The Company filed a report on Form 8-K, dated April 24, 1998,
reporting in Item 5, Other Events, that the Company had
released a press release dated April 24, 1998, which was
filed as an Exhibit.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
OLSTEN CORPORATION
(REGISTRANT)
Date: August 12, 1998 /s/ Frank N. Liguori
--------------------
Frank N. Liguori
Chairman and Chief
Executive Officer
Date: August 12, 1998 /s/ Anthony J. Puglisi
----------------------
Anthony J. Puglisi
Executive Vice President and
Chief Financial Officer
<PAGE>
BY-LAWS OF
OLSTEN CORPORATION
(A Delaware Corporation)
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders of OLSTEN
CORPORATION (hereinafter called the "Corporation") shall be held at 9:00 A.M. on
the first Tuesday in May of each year, if not a legal holiday, and if a legal
holiday, then on the next succeeding day not a legal holiday. At the annual
meeting the stockholders shall elect a Board of Directors (hereinafter referred
to as the "Board") and transact such other business as may properly be brought
before the meeting. If the annual meeting shall not be held on the day
hereinabove provided for, the Board shall cause the meeting to be held as soon
thereafter as convenient.
Section 2. Special Meetings. Special meetings of the stockholders, unless
otherwise prescribed by statute, may be called for any purpose or purposes at
any time by the Board, the Chairman of the Board or the President, or at the
request, in writing, of stockholders owning shares issued and outstanding and
entitled to vote and entitled to cast at least one-fourth of the votes entitled
to be cast on matters other than the election of directors.
Section 3. Notice of Meetings. Notice of the place, date and time of the
holding of each annual and special meeting of the stockholders and, in the case
of a special meeting, the purpose or purposes thereof, shall be given personally
or by mail in a postage prepaid envelope to each stockholder entitled to vote at
such meeting, not less than ten nor more than sixty days before the date of such
meeting, and, if mailed, it shall be directed to such stockholder at his address
as it appears on the records of the Corporation, unless he shall have filed with
the Secretary of the Corporation a written request that notices to him be mailed
to some other address, in which case it shall be directed to him at such other
address. Notice of any meeting of stockholders shall not be required to be given
to any stockholder who shall attend such meeting in person or by proxy and shall
not, at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a signed waiver of notice, in person or by
proxy. Unless the Board shall fix after the adjournment a new record date for an
adjourned meeting or unless the adjournment is for more than thirty days, notice
of such adjourned meeting need not be given if the time and place to which the
meeting shall be adjourned were announced at the meeting at which the
adjournment is taken. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 4. Place of Meetings. Meetings of the stockholders may be held at
such place, within or without the State of Delaware, as the Board or the officer
calling the same shall specify in the notice of such meeting, or in a duly
executed waiver of notice thereof.
Section 5. Quorum and Vote Required. Except as otherwise provided by
applicable law, the Restated Certificate of Incorporation of the Corporation, as
the same may be amended from time to time (hereinafter referred to as the
"Restated Certificate of Incorporation"), or by these By-Laws, at all meetings
of the stockholders the holders of shares entitled to cast a majority of the
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votes entitled to be cast at such meeting on all matters other than the election
of directors, present in person or represented by proxy at the meeting, shall
constitute a quorum for the transaction of business. The affirmative vote of the
holders of shares entitled to cast a majority of the votes entitled to be cast
on any matter, other than the election of directors, present in person or
represented by proxy at the meeting and entitled to vote on the subject matter
shall be the act of the stockholders.
Where a separate vote by class or classes is required by applicable law or
by the Restated Certificate of Incorporation, the holders of outstanding shares
of such class or classes entitled to cast a majority of the votes entitled to be
cast by such class or classes, present in person or represented by proxy at the
meeting, shall constitute a quorum entitled to take action with respect to the
vote on that matter and, except with respect to the election of directors, the
affirmative vote of the holders of shares entitled to cast a majority of the
votes entitled to be cast by holders of shares of such class or classes present
in person or represented by proxy at the meeting shall be the act of such class
or classes.
Directors shall be elected by a plurality of the votes entitled to be cast
by the holders of shares present in person or represented by proxy at the
meeting and entitled to vote on the election of directors and, where a separate
vote by a class or classes is required with respect to the election of
directors, such election shall be by a plurality of the votes entitled to be
cast by the holders of the shares present in person or represented by proxy at
the meeting and entitled to vote on the election of directors by such class or
classes.
In the absence of a quorum, the holders of a majority of the votes entitled
to be cast by the holders of shares of stock present in person or represented by
proxy and entitled to vote, or if no stockholder entitled to vote is present,
then any officer of the Corporation, may adjourn the meeting from time to time.
At any such adjourned meeting at which a quorum may be present any business may
be transacted which might have been transacted at the meeting as originally
called.
Unless required by statute, or determined by the chairman of the meeting to
be advisable, the vote on any question need not be by written ballot. On a vote
by written ballot, each ballot shall be signed by the stockholder voting, or by
his proxy, if there be such proxy, and shall state the number of shares voted.
Section 6. Organization. At each meeting of the stockholders, the Chairman
of the Board, or in the absence or inability to act of the Chairman, the
President, or in the absence or inability to act of the President, a Vice
President, or in the absence of all of the foregoing, any person chosen by a
majority of the votes entitled to be cast by those stockholders present, shall
act as chairman of the meeting. The Secretary, or in his or her absence or
inability to act, the Assistant Secretary or any person appointed by the
chairman of the meeting, shall act as secretary of the meeting and keep the
minutes thereof.
Section 7. Order of Business. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
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Section 8. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted by the Board, and which record date shall not be more than sixty nor
less than ten days before the date of such meeting. If no record date is fixed
by the Board, the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the date on which notice is given, or, if notice is waived,
at the close of business on the day next preceding the day on which the meeting
is held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
In order that the Corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board, and which date shall
not be more than ten days after the date upon which the resolution fixing the
record date is adopted by the Board. If no record date has been fixed by the
Board, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
is required, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Corporation
by delivery to its registered office in the State of Delaware, its principal
place of business, or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board and prior action by the Board is required, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
Board adopts the resolution taking such prior action.
Section 9. Proxies. Each stockholder entitled to vote at any meeting of
stockholders may authorize another person or persons to act for him or her by a
proxy signed by such stockholder or his or her attorney-in-fact. Any such proxy
shall be delivered to the secretary of such meeting at or prior to the time
designated in the order of business for so delivering such proxies. No proxy
shall be valid after the expiration of three years from the date thereof, unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the stockholder executing it, except in those cases where an irrevocable
proxy is permitted by law.
Section 10. List of Stockholders. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
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Section 11. Inspectors. The Board may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If the inspectors shall not be so appointed or if any of
them shall fail to appear or act, the chairman of the meeting may, and on the
request of any stockholder entitled to vote thereat shall, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his or her ability. The inspectors shall determine the number of shares
outstanding and the voting power of each, the number of shares represented at
the meeting, the existence of a quorum and the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count and tabulate
all votes, ballots or consents, determine the results, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the chairman of the meeting or any stockholder entitled to vote
thereat, the inspectors shall make a report, in writing, of any challenge,
request or matter determined by the inspectors and shall execute a certificate
of any fact found by the inspectors. No director or candidate for the office of
director shall act as inspector of an election of directors. Inspectors need not
be stockholders.
Section 12. Consent of Stockholders in Lieu of Meeting. Any action required
to be taken at any annual or special meeting of stockholders of the Corporation,
or any action which may be taken at any annual or special meeting of such
stockholders, may be taken without prior notice and without a vote, if a consent
or consents in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted.
Every written consent shall bear the date of signature of each stockholder
who signs the consent, and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty days of the earliest
dated consent delivered in the manner required by this Section to the
Corporation, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business or an officer or agent of
the Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Prompt notice of the taking of corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board. The Board may exercise
all such authority and powers of the Corporation and do all such lawful acts and
things as are not by statute or the Restated Certificate of Incorporation
directed or required to be exercised or done by the stockholders.
Section 2. Number, Qualifications, Election and Term of Office. The number
of directors of the Corporation shall be determined by majority vote of the
entire Board or by amendment of these By-Laws but, unless this By-Law is
amended, shall not be more than twelve nor less than three. Directors need not
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be stockholders. Each director shall hold office until the next annual meeting
of the stockholders and until his or her successor shall have been duly elected
and qualified, or until his or her death, or until he or she shall have
resigned, or have been removed, as hereinafter provided in these By-Laws, or as
otherwise provided by statute or the Restated Certificate of Incorporation.
Section 3. Place of Meetings. Meetings of the Board may be held at such
place, within or without the State of Delaware, as the Board may, from time to
time, determine or as shall be specified in the notice or waiver of notice of
such meeting.
Section 4. Annual Meeting. The Board shall meet for the purpose of the
election of officers and the transaction of other business, as soon as
practicable after each annual meeting of the stockholders, on the same day and
at the same place where such annual meeting shall be held. Notice of such annual
meeting of the Board need not be given. Such meeting may be held at any other
time or place (within or without the State of Delaware) which shall be specified
in a notice thereof given as hereinafter provided in Section 7 of this Article
II.
Section 5. Regular Meetings. Regular meetings of the Board shall be held at
such time and place as the Board may, from time to time, determine. If any day
fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting which would otherwise be held on that
day shall be held at the same hour on the next succeeding business day. Notice
of regular meetings of the Board need not be given except as otherwise required
by statute or these By-Laws.
Section 6. Special Meetings. Special meetings of the Board may be called by
two or more directors of the Corporation or by the Chairman of the Board or the
President.
Section 7. Notice of Meetings. Notice of each special meeting of the Board
(and of each regular meeting for which notice shall be required) shall be given
by the Secretary as hereinafter provided in this Section 7, in which notice
shall be stated the time and place (within or without the State of Delaware) of
the meeting. Notice of each such meeting shall be delivered to each director
either personally or by telephone, telegraph, cable or wireless, at least
twenty-four hours before the time at which such meeting is to be held or by
first-class mail, postage prepaid, or overnight courier, addressed to a director
at the director's residence, or usual place of business, at least three days
before the day on which such meeting is to be held. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to such
director. Except as otherwise specifically required by these By-Laws, a notice
or waiver of notice of any regular or special meeting need not state the
purposes of such meeting.
Section 8. Quorum and Manner of Acting. A majority of the entire Board
shall be present in person at any meeting of the Board in order to constitute a
quorum for the transaction of business at such meeting, and, except as otherwise
expressly required by statute or the Restated Certificate of Incorporation, the
act of a majority of the directors present at any meeting at which a quorum is
present shall be the act of the Board. In the absence of a quorum at any meeting
of the Board, a majority of the directors present thereat, or if no director be
present, the Secretary, may adjourn such meeting to another time and place, or
such meeting need not be held. At any adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at the
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meeting as originally called. Except as provided in Article III of these
By-Laws, the directors shall act only as a Board and the individual directors
shall have no power as such.
Section 9. Organization. At each meeting of the Board, the Chairman of the
Board, or in his absence or inability to act, the President, or in his absence
or inability to act, another director chosen by a majority of the directors
present shall act as Chairman of the meeting and preside thereat. The Secretary
(or in his absence or inability to act, any person appointed by the Chairman)
shall act as Secretary of the meeting and keep the minutes thereof.
Section 10. Resignations. Any director of the Corporation may resign at any
time by giving written notice of his or her resignation to the Board, the
Chairman of the Board, the President or Secretary. Any such resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 11. Vacancies. Vacancies and newly created directorships resulting
from an increase in the authorized number of directors elected by all of the
stockholders may be filled by a majority of the directors then in office, though
less than a quorum, or by a sole remaining director, and the directors so chosen
shall hold office until the next annual election and until their successors are
duly elected and shall qualify, unless sooner displaced. Whenever the holders of
any class or classes of stock or series thereof are entitled to elect one or
more directors by the provisions of the Restated Certificate of Incorporation,
vacancies and newly created directorships of such class or classes or series may
be filled by a majority of the directors elected by such class or classes or
series thereof in office, or by a sole remaining director so elected. If there
are no directors in office, then an election of directors may be held in the
manner provided by statute. If, at the time of filling any vacancy or any newly
created directorship, the directors then in office shall constitute less than a
majority of the whole Board (as constituted immediately prior to any such
increase), the Delaware Court of Chancery may, upon application of any
stockholder or stockholders holding shares entitling such holders to cast at
least ten percent of the total number of the votes entitled to be cast by the
holders of all shares at the time outstanding having the right to vote for
directors, summarily order an election to be held to fill any such vacancies or
newly created directorships, or to replace the directors chosen by the directors
then in office. When one or more directors shall resign from the Board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office as
provided in this Section in the filling of other vacancies.
Section 12. Removal of Directors. Except as otherwise provided in the
Restated Certificate of Incorporation, or in these By-Laws, any director may be
removed, either with or without cause, at any time, by the affirmative vote of
the holders of record of shares entitled to cast a majority of the votes
entitled to be cast by the issued and outstanding stock entitled to vote for the
election of directors of the Corporation given at a special meeting of the
stockholders called and held for the purpose; provided, however, that whenever
the holders of any class or series are entitled to elect one or more directors
by the provisions of the Restated Certificate of Incorporation the foregoing
provision shall apply, in respect to the removal without cause of a director or
directors so elected, to the vote of the holders of the outstanding shares of
that class or series and not to the vote of the outstanding shares as a whole;
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and the vacancy in the Board caused by any such removal may be filled by such
stockholders at such meeting, or, if the stockholders shall fail to fill such
vacancy, as in these By-Laws provided.
Section 13. Compensation. The Board shall have authority to fix the
compensation, including fees and reimbursement of expenses, of directors for
services to the Corporation in any capacity, provided, no such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 14. Action Without Meeting. Any action required or permitted to be
taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
Section 1. Executive and other Committees. The Board may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of two or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. Any such committee, to the extent provided in the resolution shall
have and may exercise the powers of the Board in the management of the business
and affairs of the Corporation and may authorize the seal of the Corporation to
be affixed to all papers which may require it; provided, however, that in the
absence or disqualification of any member of such committee or committees, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he, she or they constitute a quorum, may unanimously
appoint another member of the Board to act at the meeting in the place of any
such absent or disqualified member. Each committee shall keep written minutes of
its proceedings and shall report such minutes to the Board when required. All
such proceedings shall be subject to revision or alteration by the Board;
provided, however, that third parties shall not be prejudiced by such revision
or alteration.
Section 2. General. A majority of any committee may determine its action
and fix the time and place of its meetings, unless the Board shall otherwise
provide. Notice of such meetings shall be given to each member of the committee
in the manner provided for in Section 7 of Article II. The Board shall have any
power at any time to fill vacancies in, to change the membership of, or to
dissolve any such committee. Nothing herein shall be deemed to prevent the Board
from appointing one or more committees consisting in whole or in part of persons
who are not directors of the Corporation; provided, however, that no such
committee shall have or may exercise any authority of the Board.
ARTICLE IV
OFFICERS
Section 1. Number and Qualifications. The officers of the Corporation shall
include the Chairman of the Board of Directors, the President, one or more Vice
Presidents (one or more of whom may be designated an Executive Vice President or
a Senior Vice President), the Treasurer and the Secretary. Any two or more
offices may be held by the same person, except the offices of President and
Secretary. Such officers shall be elected, from time to time, by the Board, each
to hold office until the meeting of the Board following the next annual meeting
of the stockholders, or until his or her successor shall have been duly elected
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and shall have qualified, or until his or her death, or until he or she shall
have resigned, or have been removed, as hereinafter provided in these By-Laws.
The Board may, from time to time, elect or delegate to the Chairman of the Board
or the President the power to appoint such other officers (including one or more
Assistant Vice Presidents, one or more Assistant Treasurers and one or more
Assistant Secretaries), and such agents, as may be necessary or desirable for
the business of the Corporation. Such other officers and agents shall have such
duties and shall hold their offices for such terms as may be prescribed by the
Board or by the appointing authority.
Section 2. Resignations. Any officer of the Corporation may resign at any
time by giving written notice of his or her resignation to the Board, the
Chairman of the Board, the President or the Secretary. Any such resignation
shall take effect at the time specified therein or, if the time when it shall
become effective shall not be specified therein, immediately upon its receipt;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 3. Removal. Any officer or agent of the Corporation may be removed
either with or without cause at any time by the vote of the majority of the
entire Board at any meeting of the Board or, except in the case of an officer or
agent elected or appointed by the Board, the Chairman of the Board or the
President.
Section 4. Vacancies. A vacancy in any office, whether arising from death,
resignation, removal or any other cause, may be filled for the unexpired portion
of the term of the office which shall be vacant in the manner prescribed in
these By-Laws for the regular election or appointment to such office.
Section 5. Chairman of the Board of Directors. The Chairman of the Board
shall be the Chief Executive Officer of the Corporation. He or she shall
generally supervise the management of the business of the Corporation. He or she
shall, if present, preside at each meeting of the stockholders and of the Board
and shall be an ex-officio member of all committees of the Board and shall
perform such other duties as may, from time to time, be assigned by the Board.
Section 6. President. The President shall direct all subordinate officers,
agents and employees reporting to the President and see to it that their duties
are properly performed and shall perform such other duties as may, from time to
time, be assigned by the Board or the Chairman the Board.
Section 7. Vice Presidents. The Executive Vice President(s), the Senior
Vice President(s) and each Vice President shall have such powers and perform all
such duties as, from time to time, may be assigned to them by the Board,
Chairman of the Board or the President.
Section 8. The Treasurer. The Treasurer shall:
(a) have charge and custody of, and be responsible for, all funds and
securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and have control of all books of account of
the Corporation;
(c) cause all moneys and other valuables to be deposited to the credit
of the Corporation in such depositories as may be designated by the Board;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
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(e) disburse the funds of the Corporation and supervise the investment
of its funds as ordered or authorized by the Board, taking proper vouchers
therefor;
(f) render to the Chairman of the Board and the Board, whenever the
Board may require, an account of the financial condition of the Corporation; and
(g) in general, perform all the duties incident to the office of
Treasurer and such other duties as, from time to time, may be assigned by the
Board, the Chairman of the Board or the President.
Section 9. The Secretary. The Secretary shall:
(a) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board, the committees of the Board
and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the Corporation and
affix and attest the seal to all stock certificates of the Corporation (unless
the seal of the Corporation on such certificates shall be a facsimile, as
hereinafter provided) and affix and attest the seal to all ot documents to be
executed on behalf of the Corporation under its seal;
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly kept and
filed; and
(e) in general, perform all the duties incident to the office of
Secretary and such other duties as, from time to time, may be assigned by the
Board, the Chairman of the Board or the President.
Section 10. Officers' Bonds or Other Security. If required by the Board,
any officer of the Corporation shall give a bond or other security for the
faithful performance of his duties, in such amount and with such surety or
sureties as the Board may require.
Section 11. Compensation. The compensation of the officers of the
Corporation for their services as such officers shall be fixed, from time to
time, by the Board; provided, however, that the Board may delegate to the
Chairman of the Board and President the power to fix the compensation of
officers and agents appointed by them. An officer of the Corporation shall not
be prevented from receiving compensation by reason of the fact that he or she is
also a director of the Corporation, but any such officer who shall also be a
director shall not have any vote in the determination of the amount of
compensation paid to him or her.
ARTICLE V
INDEMNIFICATION
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
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rights than permitted prior thereto), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith and such indemnification shall continue as to
an indemnitee who has ceased to be a director or officer and shall inure to the
benefit of the indemnitee's heirs, executors and administrators; provided,
however, that the Corporation shall indemnify any such indemnitee in connection
with a proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Board.
Section 2. Right to Advancement of Expenses. The right to indemnification
conferred to in Section 1 of this Article V shall include the right to be paid
by the Corporation the expenses incurred in defending any proceeding for which
such right to indemnification is applicable in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the
Delaware General Corporation Law requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking, by or on behalf of
such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal that such indemnitee is not entitled to be indemnified for such expenses
under this Article V or otherwise.
Section 3. Non-Exclusivity of Rights. The rights to indemnification and to
the advancement of expenses conferred in this Article V shall not be exclusive
of any other right which any person may have or hereafter acquire under any
statute, the Restated Certificate of Incorporation, By-Law, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 4. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
Section 5. Indemnification of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by the Board, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Corporation or, if serving at the request of the Corporation, as an
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit
plan, to the fullest extent of the provisions of this Article V with respect to
the indemnification and advancement of expenses of directors and officers of the
Corporation.
ARTICLE VI
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 1. Execution of Contracts. Except as otherwise required by statute,
the Restated Certificate of Incorporation or these By-Laws, any contracts or
other instruments may be executed and delivered in the name and on behalf of the
Corporation by such officer or officers (including any assistant officer) of the
Corporation as the Board may, from time to time, direct. Such authority may be
general or confined to specific instances as the Board may determine. Unless
authorized by the Board or expressly permitted by these By-Laws, an officer or
agent or employee shall not have any power or authority to bind the Corporation
<PAGE>
by any contract or engagement or to pledge its credit or to render it
pecuniarily liable for any purpose or to any amount.
Section 2. Loans. Unless the Board shall otherwise determine, either (a)
the Chairman of the Board or President, singly, or (b) any Vice President, the
Treasurer or the Secretary, together with either the Chairman of the Board or
President, may effect loans and advances at any time for the Corporation from
any bank, trust company or other institution, or from any firm, corporation or
individual, and for such loans and advances may make, execute and deliver
promissory notes, bonds or other certificates or evidences of indebtedness of
the Corporation, but no officer or officers shall mortgage, pledge, hypothecate
or transfer any securities or other property of the Corporation, except when
authorized by the Board.
Section 3. Checks, Drafts, etc. All checks, drafts, bills of exchange or
other orders for the payment of money out of the funds of the Corporation, and
all notes or other evidences of indebtedness of the Corporation, shall be signed
in the name and on behalf of the Corporation by such persons and in such manner
as shall, from time to time, be authorized by the Board.
Section 4. Deposits. All funds of the Corporation not otherwise employed
shall be deposited, from time to time, to the credit of the Corporation in such
banks, trust companies or other depositories as the Board may, from time to
time, designate or as may be designated by any officer or officers of the
Corporation to whom such power of designation may, from time to time, be
delegated by the Board. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, checks, drafts and other orders
for the payment of money which are payable to the order of the Corporation may
be endorsed, assigned and delivered by any officer or agent of the Corporation,
or in such other manner as the Board may determine by resolution.
Section 5. General and Special Bank Accounts. The Board may, from time to
time, authorize the opening and keeping of general and special bank accounts
with such banks, trust companies or other depositories as the Board may
designate or as may be designated by any officer or officers of the Corporation
to whom such power of designation may, from time to time, be delegated by the
Board. The Board may make such special rules and regulations with respect to
such bank accounts, not inconsistent with the provisions of these By-Laws, as it
may deem expedient.
Section 6. Proxies in Respect of Securities of Other Corporations. Unless
otherwise provided by resolution adopted by the Board of Directors, the Chairman
of the Board, the President or a Vice President or the Treasurer may, from time
to time, appoint an attorney or attorneys or agent or agents, of the
Corporation, in the name and on behalf of the Corporation to cast the votes
which the Corporation may be entitled to cast as the holder of stock or other
securities in any other corporation any of whose stock or other securities may
be held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporation, or to consent, in writing, in the name of
the Corporation as such holder, to any action by such other corporation, and may
instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal, or
otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises.
<PAGE>
ARTICLE VIII
SHARES, ETC.
Section 1. Stock Certificates. Each holder of stock of the Corporation
shall be entitled to have a certificate, in such form as shall be approved by
the Board, certifying the number of shares of stock of the Corporation owned by
such holder. The certificates representing shares of stock shall be signed in
the name of the Corporation by the Chairman of the Board, the President or a
Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer and sealed with the seal of the Corporation (which
seal may be a facsimile, engraved or printed); provided, however, that where any
such certificate is countersigned by a transfer agent other than the Corporation
or its employee, or is registered by a registrar other than the Corporation or
one of its employees, the signature of the officers of the Corporation upon such
certificates may be facsimiles, engraved or printed. In case any officer who
shall have signed or whose facsimile signature has been placed upon such
certificates shall have ceased to be such officer before such certificates shall
be issued, they may nevertheless be issued by the Corporation with the same
effect as if such officer were still in office at the date of their issue.
Section 2. Books of Account and Record of Stockholders. The books and
records of the Corporation may be kept at such places within or without the
State of Delaware, as the Board may, from time to time, determine. The stock
record books and the blank stock certificate books shall be kept by the
Secretary or by any other officer or agent designated by the Board.
Section 3. Transfers of Shares. Transfers of shares of stock of the
Corporation shall be made on the stock records of the Corporation only upon
authorization by the registered holder thereof, or by his or her attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary or with a transfer agent or transfer clerk, and on surrender of the
certificate or certificates for such shares properly endorsed or accompanied by
a duly executed stock transfer power and the payment of all taxes thereon.
Except as otherwise provided by law, the Corporation shall be entitled to
recognize the exclusive right of a person in whose name any share or shares
stand on the record of stockholders as the owner of such share or shares for all
purposes, including, without limitation, the rights to receive dividends or
other distributions and to vote as such owner, and the Corporation may hold any
such stockholder of record liable for calls and assessments and the Corporation
shall not be bound to recognize any equitable or legal claim to or interest in
any such share or shares on the part of any other person whether or not it shall
have express or other notice thereof. Whenever any transfers of shares shall be
made for collateral security and not absolutely and both the transferor and
transferee request the Corporation to do so, such fact shall be stated in the
entry of the transfer.
Section 4. Regulations. The Board may make such additional rules and
regulations, not inconsistent with these By-Laws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation. It may appoint, or authorize any officer or officers
to appoint, one or more transfer agents or one or more transfer clerks and one
or more registrars and may require all certificates for shares of stock to bear
the signature or signatures of any of them.
Section 5. Lost, Destroyed or Mutilated Certificates. The holder of any
certificate representing shares of stock of the Corporation shall immediately
notify the Corporation of any loss, destruction or mutilation of such
certificate, and the Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it which the owner thereof shall
<PAGE>
allege to have been lost, stolen or destroyed or which shall have been
mutilated, and the Board may, in its discretion, require such owner or his or
her legal representatives to give to the Corporation a bond in such sum, limited
or unlimited, and in such form and with such surety or sureties as the Board, in
its absolute discretion, shall determine, to indemnify the Corporation against
any claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate, or the issuance of a new certificate.
Anything herein to the contrary notwithstanding, the Board, in its absolute
discretion, may refuse to issue any such new certificate, except pursuant to
legal proceedings under the laws of the State of Delaware.
Section 6. Stockholder's Right of Inspection. Any person who shall have
been a stockholder of record of the Corporation for at least six months
immediately preceding his or her demand, or any person holding, or thereunto
authorized by the holders of, at least five percent of the outstanding shares of
stock of the Corporation, shall, in person or by attorney or other agent, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours for business to inspect for any proper purpose the Corporation's
stock ledger, a list of its stockholders, and its other books and records, and
to make copies or extracts therefrom. A proper purpose shall mean a purpose
reasonably related to such person's interest as a stockholder. In every instance
where an attorney or other agent shall be the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing which authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
Corporation at its registered office in the State of Delaware or at its
principal place of business.
Section 7. Fixing of Record Date. In order that the Corporation may
determine the stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled to exercise
any rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board adopts the resolution relating thereto.
ARTICLE VIII
OFFICES
Section 1. Registered Office. The registered office of the Corporation in
the State of Delaware shall be at 32 Loockerman Square, Dover, Delaware or such
other office within the State of Delaware as the Board of Directors may
determine, from time to time.
Section 2. Other Offices. The Corporation may also have an office or
offices other than said principal office at such place or places, either within
or without the State of Delaware, as the Board shall, from time to time,
determine or the business of the Corporation may require.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board.
<PAGE>
ARTICLE X
SEAL
The Board shall provide a corporate seal, which shall be in the form of two
concentric circles and bear the name of the Corporation and the words and
figures "Corporate Seal 1967, Delaware".
ARTICLE XI
AMENDMENTS
These By-Laws may be amended or repealed, or new By-Laws may be adopted, at
any annual or special meeting of the stockholders, by a majority of the total
votes of the stockholders or when stockholders are required to vote by class by
a majority of the total votes of the appropriate class, present in person or
represented by proxy and entitled to vote on such action; provided, however,
that the notice of such meeting shall have been given as provided in these
By-Laws, which notice shall mention that amendments or repeal of these By-Laws,
or the adoption of new By-Laws, is one of the purposes of such meeting. These
By-Laws may also be amended or repealed, or new By-Laws may be adopted, by the
Board at any meeting thereof; provided, however, that notice of such meeting
shall have been given as provided in these By-Laws, which notice shall mention
that amendment or repeal of the By-Laws, or the adoption of new By-Laws, is one
of the purposes of such meeting; and provided, further, that By-Laws adopted by
the Board may be amended or repealed by the stockholders as hereinabove
provided.
<PAGE>
AMENDMENT NO. 3
CREDIT AGREEMENT
AMENDMENT NO. 3 TO CREDIT AGREEMENT, dated as of July 30, 1998 (this
"Amendment No. 3"), among OLSTEN CORPORATION, a corporation organized under the
laws of the State of Delaware (the "Borrower"), each of the Banks which is
signatory hereto and THE CHASE MANHATTAN BANK, a New York banking corporation,
as agent for the Banks (in such capacity, the "Agent").
RECITALS:
A. The parties hereto entered into that certain Credit Agreement, dated as
of August 9, 1996, as amended by Amendment No. 1, dated as of August 27, 1997
and Amendment No. 2, dated as of February 24, 1998 (the "Credit Agreement").
B. The Borrower has requested that the Credit Agreement be amended as set
forth herein and the Banks have agreed to such amendment subject to the terms
and conditions of this Amendment No. 3.
C. Any capitalized terms used herein and not defined herein shall have the
meanings ascribed to such terms in the Credit Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1.
AMENDMENTS TO CREDIT AGREEMENT
The amendments set forth in this Amendment No. 3 shall be deemed to be an
amendment to the Credit Agreement and shall not be construed in any way as a
replacement or substitution therefor. All of the terms and provisions of this
Amendment No. 3 are hereby incorporated by reference into the Credit Agreement
as if such terms were set forth in full therein.
Section 1.1. Article 9 of the Credit Agreement is hereby amended and
restated to provide in its entirety as follows:
ARTICLE 9.
FINANCIAL COVENANTS.
As long as any of the Notes shall remain unpaid, any Letters of Credit
remain outstanding or any Bank shall have any Commitment under this Agreement:
Section 9.1. Minimum Consolidated Interest Coverage. The Borrower and its
Consolidated Subsidiaries shall maintain at all times during the periods
specified below a ratio of (A) Consolidated EBIT, determined on a rolling
four quarterly basis, to (B) Consolidated Interest Expense of not less than
the ratios specified below:
Period Ratio
------ -----
03/30/98 through 7/4/99 3.50:1.00
07/05/99 and thereafter 4.00:1.00
Section 9.2. Ratio of Consolidated Funded Debt to Consolidated EBITDA. The
Borrower and its Consolidated Subsidiaries shall maintain at all times
during the periods specified below a ratio of (A) Consolidated Funded Debt
<PAGE>
to (B) Consolidated EBITDA, determined on a rolling four quarterly basis,
of not more than the ratios specified below:
Period Ratio
------ -----
03/30/98 through 7/4/99 3.25:1.00
07/05/99 and thereafter 3.00:1.00
Section 9.3. Minimum Consolidated Net Worth. The Borrower and its
Consolidated Subsidiaries shall maintain at all times during the periods
specified below a minimum Consolidated Net Worth of not less than the
amounts specified below:
Period Amount
------ ------
12/29/97 - 1/3/99 Actual Consolidated Net Worth at 12/28/97
1/04/99 - 1/2/00 Actual Consolidated Net Worth at 1/3/99
1/3/00 - 12/31/00 Actual Consolidated Net Worth at 1/2/00
1/1/01 and thereafter Actual Consolidated Net Worth at 12/31/00
For purposes of calculating compliance with this covenant, required minimum
Consolidated Net Worth shall be reduced dollar for dollar to the extent the
Borrower and its Consolidated Subsidiaries incur after-tax restructuring charges
but only to the extent that such charges relate to pre-tax restructuring charges
of up to $100,000,000 from the Closing Date through the Termination Date;
provided, however, that in no event shall Consolidated Net Worth be less than
$790,000,000.
All of the foregoing financial covenants will be calculated for the
Borrower and its Consolidated Subsidiaries, on a consolidated basis, and the
Borrower must be in compliance with all such tests at all times during the
specified periods; provided that the Borrower and its Consolidated Subsidiaries
shall be under no obligation to provide to the Banks computations demonstrating
compliance with these financial covenants or with financial statements other
than those required to be delivered pursuant to Section 7.8 above.
Section 1.2. The amendments effected hereby shall be deemed to have an
effective date as of March 30, 1998.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Banks that:
Section 2.1. Except to the extent previously disclosed in writing to the
Banks, each of the representations and warranties set forth in Article 6 of the
Credit Agreement is true as of the date hereof with respect to the Borrower and,
to the extent applicable, the Guarantor and each of their Subsidiaries and with
the same effect as though made on the date hereof, and is hereby incorporated
herein in full by reference as if fully restated herein in its entirety. In
addition, in order to induce the Banks to enter into this Amendment, the
Borrower hereby covenants, represents and warrants to the Banks that since March
29, 1998 there has been no material adverse change in the business, operations,
properties or financial condition of the Borrower or of the Borrower, Guarantor
and their Subsidiaries taken as a whole.
Section 2.2. To induce the Banks and the Agent to enter into this Amendment
No. 3 and to continue to make advances to the Borrower pursuant to the Credit
Agreement, as amended hereby, the Borrower hereby acknowledges and agrees that,
<PAGE>
as of the date hereof, and after giving effect to the terms hereof, there exists
(i) no Event of Default (or any event which, with the giving of notice or the
passage of time, or both, would constitute an Event of Default); and (ii) no
right of offset, defense, counterclaim, claim or objection in favor of the
Borrower arising out of or with respect to any of the Obligations.
Section 2.3. The Borrower has the corporate power and authority to enter
into, perform and deliver this Amendment No. 3 and any other documents,
instruments, agreements or other writings to be delivered in connection
herewith. This Amendment No. 3 and all documents contemplated hereby or
delivered in connection herewith, have each been duly authorized, executed and
delivered and the transactions contemplated herein have been duly authorized.
Section 2.4. This Amendment No. 3 and any other documents, agreements or
instruments now or hereafter executed and delivered to the Banks by the Borrower
in connection herewith constitute (or shall, when delivered, constitute) valid
and legally binding obligations of Borrower, each of which is and shall be
enforceable against Borrower in accordance with their respective terms.
Section 2.5. No representation, warranty or statement by the Borrower
contained herein or in any other document to be furnished by the Borrower in
connection herewith contains, or at the time of delivery shall contain, any
untrue statement of material fact, or omits or at the time of delivery shall
omit to state a material fact necessary to make such representation, warranty or
statement not misleading.
Section 2.6. No consent, waiver or approval of any entity is or will be
required in connection with the execution, delivery, performance, validity or
enforcement of this Amendment No. 3, or any other agreements, instruments or
documents to be executed and/or delivered in connection herewith or pursuant
hereto.
ARTICLE 3.
MISCELLANEOUS
Section 3.1. This Amendment No. 3 may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Amendment No. 3 by signing any
such counterpart.
Section 3.2. This Amendment No. 3 shall be effective when, and only when,
the Agent shall have received counterparts of this Amendment No. 3 executed by
the Borrower, the Agent and the Required Banks.
Section 3.3. This Amendment No. 3 shall be governed by, and interpreted and
construed in accordance with, the laws of the State of New York (without giving
effect to the conflict of laws provisions thereof).
Section 3.4. On and after the effective date of this Amendment No. 3, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, and each reference in
the Facility Documents to "the Credit Agreement", "thereunder", "thereof", or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as amended by this Amendment No. 3. The Credit
Agreement, as amended by this Amendment No. 3, is and shall continue to be in
full force and effect and is hereby in all respects ratified and confirmed.
<PAGE>
Section 3.5. The Borrower agrees to take such further actions as the Agent
shall reasonably request in connection herewith to evidence the amendments
herein contained to the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
OLSTEN CORPORATION
By:____________________________
Name: Laurin L. Laderoute, Jr.
Title: Vice President
THE CHASE MANHATTAN BANK, as
Agent and a Bank
By:____________________________
Name:
Title:
NATIONSBANK, N.A.
By:____________________________
Name:
Title:
WELLS FARGO BANK, N.A.
By:____________________________
Name:
Title:
DRESDNER BANK AG, New York
Branch and Grand Cayman Branch
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:____________________________
Name:
Title:
<PAGE>
FLEET BANK, NATIONAL ASSOCIATION
By:_____________________________
Name:
Title:
CREDIT LYONNAIS, New York Branch
By:_____________________________
Name:
Title:
EUROPEAN AMERICAN BANK
By:____________________________
Name:
Title:
KEY BANK NATIONAL ASSOCIATION
By:____________________________
Name:
Title:
MARINE MIDLAND BANK
By:____________________________
Name:
Title:
THE BANK OF NEW YORK
By:____________________________
Name:
Title:
<PAGE>
Dated 6 May 1998
OLSTEN INTERNATIONAL B.V.
OLSTEN CORPORATION
CREDIT LYONNAIS LUXEMBOURG S.A.
- and -
OTHERS
FISCAL AGENCY AGREEMENT
relating to
FF800,000,000
6 per cent Guaranteed Notes due 2008
guaranteed by
OLSTEN CORPORATION
<PAGE>
This Agreement is made on 6 May 1998 between
(1) OLSTEN INTERNATIONAL B.V. (the Issuer)
(2) OLSTEN CORPORATION (the Guarantor)
(3) CREDIT LYONNAIS LUXEMBOURG S.A. as fiscal agent and principal paying
agent and
(4) CREDIT LYONNAIS as paying agent.
Background
(A) The Issuer proposes to issue FF800,000,000 principal amount of Notes to
be known as its 6 per cent Guaranteed Notes due 2008 which will be
guaranteed by the Guarantor.
(B) The definitive Notes for which the Global Note referred to below may be
exchanged (subject to its provisions) will be in bearer form in the
denominations of FF10,000, FF100,000 and FF1,000,000 each with Coupons
attached.
It is agreed as follows:
1 Interpretation
Terms defined in the Notes have the same meanings in this Agreement (except
where otherwise defined in this Agreement) and except where the context
requires otherwise:
"Conditions" means the terms and conditions set out in Schedule 1 as
modified, with respect to any Notes represented by the Global Note, by the
provisions of the Global Note and any reference to a particularly numbered
Condition shall be construed accordingly
"Coupons" means the coupons relating to the Notes in definitive form
"Extraordinary Resolution" has the meaning set out in Schedule 3
"Fiscal Agent" means the fiscal agent and principal paying agent for the
time being in respect of the Notes appointed from time to time under this
Agreement or an agreement supplemental to it, in its capacity as fiscal
agent
"Global Note" means the permanent global note which will represent the
Notes, or some of them, after exchange of the Temporary Global Note, or a
portion of it, substantially in the form set out in Part 2 of Schedule 2
"Notes" means the FF800,000,000 6 per cent Guaranteed Notes due 2008 of the
Issuer and (except in Clause 3) includes the Temporary Global Note and the
Global Note
"outstanding" means, in relation to the Notes, all the Notes issued except
(a) those which have been redeemed in accordance with the Conditions, (b)
those in respect of which the date for redemption has occurred and the
redemption moneys (including all interest accrued on such Notes to the date
for such redemption and any interest payable under the Conditions after
such date) have been duly paid to the Fiscal Agent as provided in this
<PAGE>
Agreement and remain available for payment against presentation and
surrender of Notes and/or Coupons, as the case may be, (c) those in respect
of which claims have become void, (d) those which have been purchased and
cancelled as provided in the Conditions, (e) those mutilated or defaced
Notes which have been surrendered in exchange for replacement Notes, (f)
(for the purpose only of determining how many Notes are outstanding and
without prejudice to their status for any other purpose) those Notes
alleged to have been lost, stolen or destroyed and in respect of which
replacement Notes have been issued, and (g) the Temporary Global Note to
the extent that it shall have been exchanged for the Global Note pursuant
to its provisions and the Global Note to the extent that it shall have been
exchanged for definitive Notes pursuant to its provisions; provided that
for the purposes of (1) ascertaining the right to attend and vote at any
meeting of the Noteholders and (2) the determination of how many Notes are
outstanding for the purposes of Schedule 3 those Notes which are
beneficially held by, or are held on behalf of, the Issuer, the Guarantor
or any of their Subsidiaries and not cancelled shall (unless and until
ceasing to be so held) be deemed not to remain outstanding
"Paying Agents" means the paying agents in respect of the Notes appointed
from time to time under this Agreement or an agreement supplemental to it
and includes the Fiscal Agent unless the context requires otherwise
"Subsidiary" means, at any particular time, a company which is then
directly or indirectly controlled, or more than 50 per cent of whose issued
equity share capital (or equivalent) is then beneficially (directly or
indirectly) owned, by the Issuer or the Guarantor. For a company to be
"controlled" by another means that the other (whether directly or
indirectly and whether by the ownership of share capital, the possession of
voting power, contract or otherwise) has the power to appoint and/or remove
all or the majority of the members of the Board of Directors or other
governing body of that company or otherwise controls or has the power to
control the affairs and policies of that company and
"Temporary Global Note" means the temporary global note which will
represent the Notes on issue and which will be substantially in the form
set out in Part 1 of Schedule 2.
2 Appointment
Each of the Issuer and the Guarantor appoints the Paying Agents as its
agents in respect of the Notes in accordance with the Conditions at their
respective specified offices referred to in the Notes. Except in Clause 14,
references to the Paying Agents are to them acting solely through such
specified offices. Each Paying Agent shall perform the duties required of
it by the Conditions. The obligations of the Paying Agents are several and
not joint.
3 Form of the Notes
3.1 The Temporary Global Note and the Global Note: The Notes will initially
be represented by the Temporary Global Note in the principal amount of
FF800,000,000. Interests in the Temporary Global Note will be exchangeable
for interests in the Global Note as set out in the Temporary Global Note.
The Global Note will be exchangeable for definitive Notes as set out in the
Global Note. Immediately before issue, the Issuer shall deliver to the
Fiscal Agent, and the Fiscal Agent (or its agent on its behalf) shall
authenticate, the duly executed Temporary Global Note and the duly executed
Global Note (in each case, with the guarantee of the Guarantor duly
<PAGE>
executed). The Fiscal Agent shall then return the Temporary Global Note and
the Global Note to or to the order of the Issuer for delivery to Crdit
Lyonnais, Luxembourg Branch as common depositary for Morgan Guaranty Trust
Company of New York, Brussels Office, as operator of the Euroclear System
and Cedel Bank, socit anonyme.
3.2 The Definitive Notes: The Notes and the Coupons will be security
printed in accordance with applicable legal and stock exchange requirements
substantially in the forms set out in Schedule 1. The Notes will be enfaced
with the guarantee of the Guarantor and endorsed with the Conditions.
3.3 Signature: The Temporary Global Note, the Global Note, the Notes and
the Coupons will be signed manually or in facsimile by an authorised
officer of the Issuer and the guarantees of the Guarantor will be signed
manually or in facsimile by an authorised officer of the Guarantor. The
Issuer and the Guarantor may use the facsimile signature of any person who
at the date of this Agreement is an authorised officer of the Issuer or an
authorised officer of the Guarantor, as the case may be, even if at the
time of issue of any Notes, Coupons or Guarantees he no longer holds that
office. Notes and/or Coupons and/or guarantees so executed will be binding
and valid obligations of the Issuer or, as the case may be, the Guarantor.
3.4 Exchange of Temporary Global Note for Global Note: On and after the
Exchange Date (as defined in the Temporary Global Note), the Fiscal Agent
shall, on presentation to it or to its order of the Temporary Global Note
and the Global Note, procure the exchange of interests in the Temporary
Global Note for interests of an equal principal amount in the Global Note
in accordance with the Temporary Global Note. On exchange in full of the
Temporary Global Note the Fiscal Agent shall cancel it.
3.5 Exchange of Global Note:
3.5.1 Notification of request for definitive Notes: The Fiscal Agent, on
receiving notice in accordance with the terms of the Global Note that its
holder requires to exchange the Global Note, or an interest in it, for
definitive Notes, shall forthwith notify the Issuer of such request.
3.5.2 Authentication and exchange: At least 14 days before any Exchange
Date (as defined in the Global Note), the Issuer will deliver or procure
the delivery of definitive Notes in an aggregate principal amount equal to
the outstanding principal amount of the Global Note or such lesser interest
in the Global Note which is to be exchanged to or to the order of the
Fiscal Agent. Such definitive Notes shall have attached all Coupons in
respect of interest which has not already been paid against presentation of
the Global Note. The Fiscal Agent (or its agent on its behalf) shall
authenticate such definitive Notes and shall make them and the Coupons
available for exchange against the Global Note in accordance with the
Global Note. If the Global Note is not to be exchanged in full, the Fiscal
Agent shall endorse, or procure the endorsement of, a memorandum of the
principal amount of the Global Note exchanged in the appropriate schedule
to the Global Note and shall return the Global Note to the bearer. On
exchange in full of the Global Note the Fiscal Agent shall cancel it and,
if so requested by the bearer, return it to the bearer.
4 Payment
4.1 Payment to Fiscal Agent: The Issuer, failing whom the Guarantor, will,
by 10.00 a.m. (Paris and Luxembourg time) on each date on which any payment
<PAGE>
in respect of the Notes becomes due, transfer to the Fiscal Agent such
amount as may be required for the purposes of such payment (including any
cash adjustment amount in respect of the Notes (the Cash Adjustment Amount)
payable following redenomination of the Notes into Euro-denominated Notes
pursuant to Condition 2). The Issuer will procure that the bank through
which such payment is to be made will supply to the Fiscal Agent by 3.00
p.m. (local time in the city of the Fiscal Agents specified office) on the
second business day in the city of the Fiscal Agents specified office
before the due date for any such payment an irrevocable confirmation (by
tested telex or authenticated SWIFT message) of its intention to make such
payment. In this Clause, the date on which a payment in respect of the
Notes becomes due means the first date on which the holder of a Note or
Coupon could claim the relevant payment by transfer to an account under the
Conditions, but disregarding the necessity for it to be a business day in
any particular place of presentation.
4.2 Notification of non-payment: The Fiscal Agent will forthwith notify by
telex each of the other Paying Agents and the Issuer and the Guarantor if
it has not by the time specified for its receipt received the confirmation
referred to in sub-Clause 4.1 or by the due date for any payment due in
respect of the Notes received the full amount so payable on such date.
4.3 Payment by Paying Agents: Unless they receive a notification from the
Fiscal Agent under sub-Clause 4.2 the Paying Agents will, subject to and in
accordance with the Conditions, pay or cause to be paid on behalf of the
Issuer or the Guarantor on and after each due date therefor the amounts due
in respect of the Notes and Coupons and will be entitled to claim any
amounts so paid from the Fiscal Agent. If any payment provided for in
sub-Clause 4.1 is made late but otherwise in accordance with this Agreement
the Paying Agents will nevertheless make such payments in respect of the
Notes and Coupons. However, unless and until the full amount of any such
payment has been made to the Fiscal Agent none of the Paying Agents will be
bound to make such payments. All payments to be made by the Paying Agents
shall be made without charging any commission or fee to Noteholders or
Couponholders.
4.4 Reimbursements of Paying Agents: The Fiscal Agent will on demand
promptly reimburse each Paying Agent for payments in respect of the Notes
and Coupons properly made by it in accordance with the Conditions and this
Agreement.
4.5 Late Payment: If the Fiscal Agent has not by the due date for any
payment in respect of the Notes received the full amount payable on such
date but receives it later, it will forthwith give notice to the other
Paying Agents and the Noteholders that it has received such full amount.
4.6 Method of payment to Fiscal Agent: All sums payable to the Fiscal Agent
hereunder will be paid (i) on or prior to the Redenomination Date, in
French Francs or (ii) after the Redenomination Date or, if the Issuer does
not elect to redenominate, in the circumstances set out in Condition 7(a),
in Euro and in immediately available or same day funds to such account with
such bank in Paris or (if the Notes are redenominated in accordance with
Condition 2 or in the circumstances set out in Condition 7(a)) such other
city, in each case as the Fiscal Agent may from time to time notify to the
Issuer and the Guarantor.
<PAGE>
4.7 Moneys held by Fiscal Agent: The Fiscal Agent may deal with moneys paid
to it under this Agreement in the same manner as other moneys paid to it as
a banker by its customers except that (1) it may not exercise any lien,
right of set-off or similar claim in respect of them and (2) it shall not
be liable to anyone for interest on any sums held by it under this
Agreement.
4.8 Partial Payments: If on presentation of a Note or Coupon only part of
the amount payable in respect of it is paid (except as a result of a
deduction of tax permitted by the Conditions), the Paying Agent to whom the
Note or Coupon is presented shall procure that such Note or Coupon is
enfaced with a memorandum of the amount paid and the date of payment.
4.9 Prohibition of Payment in the United States: No payment on any Note or
Coupon may be made at any office of the Paying Agents or any other paying
agency maintained by the Issuer in the United States of America (including
the States and the District of Columbia), or its territories, its
possessions and other areas subject to its jurisdiction (the United
States). In addition, no payment on any Note or Coupon may be made to any
address in the United States or by transfer to any account maintained in
the United States. Notwithstanding the foregoing, if U.S. dollar payments
in respect of the Notes or any Coupons at the offices of all paying agents
outside the United States become illegal or are effectively precluded
because of the imposition of exchange controls or similar restrictions on
the full payment or receipt of such amounts in U.S. dollars, the Issuer
will appoint an office or agency in the United States at which such
payments may be made.
5 Repayment
If claims in respect of any principal or interest become void under the
Conditions, the Fiscal Agent shall forthwith repay to the Issuer the amount
which would have been due if presentations for payment had been made before
such claims became void. The Fiscal Agent shall not however be otherwise
required or entitled to repay any sums received by it under this Agreement.
6 Early Redemption
6.1 Notice of Redemption: If the Issuer intends to redeem all or any of the
Notes under Condition 8 before their stated maturity date it shall, at
least 14 days before the latest date for the publication of the notice of
redemption required to be given to Noteholders, give notice of its
intention to the Fiscal Agent stating the date on which such Notes are to
be redeemed.
6.2 Redemption Notice: The Fiscal Agent shall publish the notice required
in connection with such redemption. Such notice shall specify the date
fixed for redemption, the redemption price and the manner in which
redemption will be effected.
7 Cancellation, Destruction and Records
7.1 Cancellation by Paying Agents: All Notes which are redeemed (together
with such unmatured Coupons as are attached to or are surrendered with them
at the time of such redemption), and all Coupons which are paid, shall be
cancelled forthwith by the Paying Agent by or through which they are
redeemed or paid. Such Paying Agent shall send to the Fiscal Agent the
details required by the Fiscal Agent for the purposes of this Clause and
the cancelled Notes and Coupons.
<PAGE>
7.2 Cancellation by Issuer: If the Issuer or the Guarantor or any of their
respective Subsidiaries purchases any Notes or Coupons which in accordance
with the Conditions are to be cancelled after such purchase, the Issuer or,
as the case may be, the Guarantor, shall forthwith cancel them or procure
their cancellation and send them (if in definitive form) to the Fiscal
Agent.
7.3 Certification of Payment Details: The Fiscal Agent shall within four
months after the date of any such redemption or payment send to the Issuer
and the Guarantor a certificate stating (1) the aggregate principal amount
of Notes which have been redeemed and cancelled and the aggregate amount
paid in respect of Coupons which have been paid and cancelled or in respect
of interest paid on the Temporary Global Note and the Global Note, (2) the
certificate numbers of such Notes, (3) the total numbers by maturity date
of such Coupons and (4) the total number and the maturity dates of
unmatured Coupons not surrendered with Notes redeemed, in each case
distinguishing between Notes and Coupons of different denominations.
7.4 Destruction: Unless otherwise instructed by the Issuer, or unless, in
the case of the Global Note, it is to be returned to its holder in
accordance with its terms, the Fiscal Agent shall destroy the cancelled
Notes and Coupons in its possession and send the Issuer and the Guarantor a
certificate giving the certificate numbers of such Notes in numerical
sequence, the total numbers by maturity date and the aggregate amount paid
in respect of such Coupons and particulars of the Coupons attached to or
surrendered with such Notes in each case distinguishing between Notes and
Coupons of different denominations.
7.5 Records: The Fiscal Agent shall keep a record of the purchase,
redemption, replacement, cancellation and destruction of all Notes and
Coupons (but need not record the certificate numbers of Coupons). It shall
make such record available at all reasonable times to the Issuer and the
Guarantor.
8 Replacement Notes and Coupons
8.1 Stocks of Notes and Coupons: The Issuer shall, if Notes are issued in
definitive form, cause a sufficient quantity of additional forms of Notes
and Coupons to be made available, upon request, to the Fiscal Agent (in
such capacity the Replacement Agent) for the purpose of issuing replacement
Notes and Coupons.
8.2 Replacement: The Replacement Agent shall issue replacement Notes and
Coupons in accordance with the Conditions.
8.3 Coupons on replacement Notes: In the case of a mutilated or defaced
Note, the Replacement Agent shall ensure that (unless such indemnity as the
Issuer and the Guarantor may require is given) any replacement Note only
has attached to it Coupons corresponding to those attached to the Note
which it replaces.
8.4 Cancellation: The Replacement Agent shall cancel and, unless otherwise
instructed by the Issuer, destroy any mutilated or defaced Notes or Coupons
replaced by it and shall send the Issuer and the Guarantor a certificate
giving the information specified in Clause 7.4.
<PAGE>
8.5 Notification: The Replacement Agent shall, on issuing a replacement
Note or Coupon, forthwith inform the other Paying Agents of the certificate
numbers of the replacement Note or Coupon and of the Note or Coupon which
it replaces.
8.6 Presentation of replaced Note or Coupon: If a Note or Coupon which has
been replaced is presented to a Paying Agent for payment, that Paying Agent
shall forthwith inform the Fiscal Agent, which shall inform the Issuer.
9 Redenomination and Consolidation
The Issuer will notify the Fiscal Agent at least 15 days prior to the date
of any Redenomination Notice or any other notice given pursuant to the
Conditions (i) of any redenomination or exchange of the Notes pursuant to
Condition 2 or any consolidation of the Notes pursuant to Condition 13 and
(ii) of the date (the Cash Adjustment Payment Date) on which any Cash
Adjustment Amount is to be paid to the Noteholders.
10 Notices
10.1 Publication: At the request and expense of the Issuer, failing whom
the Guarantor, the Fiscal Agent shall arrange for the publication of all
notices to Noteholders. Notices to Noteholders shall be published in
accordance with the Conditions.
10.2 Notice of Default: The Fiscal Agent shall promptly notify the Issuer,
the Guarantor and the Noteholders of any notice received by it under
Condition 9.
11 Documents and Forms
The Issuer shall send to the Paying Agents:
11.1 specimen Notes (but only if definitive Notes are issued)
11.2 sufficient copies of all documents required by the Notes, the Offering
Circular relating to the Notes or any stock exchange on which the Notes are
listed from time to time to be available for issue or inspection (and the
Paying Agents shall make them so available to Noteholders) and
11.3 as required, forms of voting certificates and block voting
instructions, together with instructions as to how to complete, deal with
and record the issue of such forms (and the Paying Agents shall make such
documents available to Noteholders and perform their other functions as set
out in Schedule 3).
12 Indemnity
12.1 By Issuer: The Issuer, failing whom the Guarantor, will indemnify each
Paying Agent against any loss, liability, cost, claim, action, demand or
expense (including, but not limited to, all reasonable costs, charges and
expenses paid or incurred in disputing or defending any of the foregoing)
which it may incur or which may be made against it arising out of or in
relation to or in connection with its appointment or the exercise of its
functions, except such as may result from a breach by it of this Agreement
or its wilful default, negligence or bad faith or that of its officers or
employees.
<PAGE>
12.2 By Paying Agents: Each Paying Agent shall indemnify the Issuer and the
Guarantor against any loss, liability, cost, claim, action, demand or
expense (including, but not limited to, all reasonable costs, charges and
expenses paid or incurred in disputing or defending any of the foregoing)
which the Issuer or the Guarantor may incur or which may be made against it
as a result of the breach by that Paying Agent of this Agreement or its
wilful default, negligence or bad faith or that of its officers or
employees.
13 General
13.1 No agency or trust: In acting under this Agreement the Paying Agents
shall have no obligation towards or relationship of agency or trust with
any Noteholder or Couponholder and need only perform the duties set out
specifically in this Agreement and the Conditions and any duties
necessarily incidental to them.
13.2 Holder to be treated as owner: Except as otherwise required by law,
each Paying Agent will treat the holder of a Note or Coupon as its absolute
owner as provided in the Conditions and will not be liable for doing so.
13.3 No lien: No Paying Agent shall exercise any lien, right of set-off or
similar claim against any Noteholder or Couponholder in respect of moneys
payable by it under this Agreement.
13.4 Taking of advice: Each Paying Agent may consult on any legal matter
any legal adviser selected by it, who may be an employee of or adviser to
the Issuer or the Guarantor, and it shall not be liable in respect of
anything done, or omitted to be done, relating to that matter in good faith
in accordance with that advisers opinion.
13.5 Reliance on documents etc.: No Paying Agent shall be liable in respect
of anything done or suffered by it in reliance on a Note, Coupon or other
document reasonably believed by it to be genuine and to have been signed by
the proper parties.
13.6 Other relationships: Any Paying Agent and any other person, whether or
not acting for itself, may acquire, hold or dispose of any Note, Coupon or
other security (or any interest therein) of the Issuer, the Guarantor or
any other person, may enter into or be interested in any contract or
transaction with any such person, and may act on, or as depositary, trustee
or agent for, any committee or body of holders of securities of any such
person, in each case with the same rights as it would have had if that
Paying Agent were not a Paying Agent and need not account for any profit.
14 Changes in Paying Agents
14.1 Appointment and Termination: The Issuer and the Guarantor may at any
time appoint additional Paying Agents and/or terminate the appointment of
any Paying Agent by giving to the Fiscal Agent and that Paying Agent (if
not the Fiscal Agent) at least 60 days notice to that effect, which notice
shall expire at least 30 days before or after any due date for payment of
any Notes or Coupons and, in respect of the Fiscal Agent, not less than 30
days before or after any specified date for redenomination and/or
consolidation of the Notes.
<PAGE>
14.2 Resignation: Any Paying Agent may resign its appointment at any time
by giving the Issuer, the Guarantor and the Fiscal Agent (if not such
Paying Agent) at least 60 days notice to that effect, which notice shall
expire at least 30 days before or after any due date for payment of any
Notes or Coupons and, in respect of the Fiscal Agent, not less than 30 days
before or after any specified date for redenomination and/or consolidation
of the Notes.
14.3 Condition to Resignation and Termination: No resignation or (subject
to sub-Clause 14.5) termination of the appointment of the Fiscal Agent
shall, however, take effect until a new Fiscal Agent (which shall be a bank
or trust company) has been appointed and no resignation or termination of
the appointment of a Paying Agent shall take effect if there would not then
be Paying Agents as required by the Conditions.
14.4 Change of Office: If a Paying Agent changes the address of its
specified office in a city it shall give the Issuer, the Guarantor and the
Fiscal Agent (if not such Paying Agent) at least 60 days notice of the
change, giving the new address and the date on which the change is to take
effect.
14.5 Automatic Termination: The appointment of the Fiscal Agent shall
forthwith terminate if the Fiscal Agent becomes incapable of acting, is
adjudged bankrupt or insolvent, files a voluntary petition in bankruptcy,
makes an assignment for the benefit of its creditors, consents to the
appointment of a receiver, administrator or other similar official of all
or a substantial part of its property or admits in writing its inability to
pay or meet its debts as they mature or suspends payment thereof, or if a
resolution is passed or an order made for the winding-up or dissolution of
the Fiscal Agent, a receiver, administrator or other similar official of
the Fiscal Agent or all or a substantial part of its property is appointed,
a court order is entered approving a petition filed by or against it under
applicable bankruptcy or insolvency law, or a public officer takes charge
or control of the Fiscal Agent or its property or affairs for the purpose
of rehabilitation, conservation or liquidation.
14.6 Delivery of records: If the Fiscal Agent resigns or its appointment is
terminated, it shall on the date on which the resignation or termination
takes effect pay to the new Fiscal Agent any amount held by it for payment
in respect of the Notes or Coupons and deliver to the new Fiscal Agent the
records kept by it and all Notes and Coupons held by it pursuant to this
Agreement.
14.7 Successor Corporations: A corporation into which a Paying Agent is
merged or converted or with which it is consolidated or which results from
a merger, conversion or consolidation to which it is a party shall, to the
extent permitted by applicable law, be the successor Paying Agent under
this Agreement without further formality. The Paying Agent concerned shall
forthwith notify such an event to the other parties to this Agreement.
14.8 Notices: The Fiscal Agent shall give Noteholders at least 30 days
notice of any proposed appointment, termination, resignation or change
under sub-Clauses 14.1 to 14.4 of which it is aware and, as soon as
practicable, notice of any succession under sub-Clause 14.7 of which it is
aware. The Issuer, failing whom the Guarantor, shall give Noteholders, as
soon as practicable, notice of any termination under sub-Clause 14.5 of
which it is aware.
<PAGE>
15 Commissions, Fees and Expenses
15.1 Fees: The Issuer, failing whom the Guarantor, will pay to the Fiscal
Agent the commissions, fees and expenses in respect of the Paying Agents
services as separately agreed with the Fiscal Agent and neither the Issuer
nor the Guarantor need concern itself with their apportionment between the
Paying Agents.
15.2 Costs: The Issuer, failing whom the Guarantor, will also pay on demand
accompanied by copies of the relevant invoices and/or receipts all
reasonable out-of-pocket expenses (including legal, advertising, telex and
postage expenses) properly incurred by the Paying Agents in connection with
their services together with any applicable value added tax and stamp,
issue, documentary or other taxes and duties.
16 Substitution
16.1 Deed Poll: The form of the Deed Poll referred to in Condition 14 is
set out in Schedule 4.
16.2 Supplemental Agency Agreement: The Agents shall act as agents of any
Substitute (as defined in Condition 14) on the execution by them and by it
and, if appropriate, by the Issuer and the Guarantor of an agreement
supplemental to this Agreement making the Substitute a party to this
Agreement as if it had been an original party to it and making any
appropriate consequential amendments. A memorandum of any such supplemental
agreement shall be endorsed on each executed copy of this Agreement.
17 Communications
17.1 Notices: Any communication shall be by letter, telex or fax:
in the case of the Issuer, to it at:
Leidseplein 291017 PS Amsterdam
Fax no.: (31) 20 62 67 949
Attention: Wil Meijs
and, in the case of the Guarantor, to it at:
175 Broad Hollow Road
Melville, New York 11747 - 8905
Fax no.: (1 516) 844 7266
Attention: General Counsel
and, in the case of any of the Paying Agents, to it care of:
Credit Lyonnais Luxembourg S.A.
26A, Boulevard Royal
L-2449 Luxembourg
Telex no.: 3441 CRELYLU
Fax no.: (352) 46 25 08
Attention: Global Trust & Agencies Department
<PAGE>
or any other address of which written notice has been given to the parties
in accordance with this Clause. Such communications will take effect, in
the case of a letter, when delivered or, in the case of telex or fax, when
despatched. Communications not by letter shall be confirmed by letter but
failure to send or receive the letter of confirmation shall not invalidate
the original communication.
17.2 Notices through Fiscal Agent: All communications relating to this
Agreement between the Issuer, the Guarantor and any of the Paying Agents or
between the Paying Agents themselves shall be made (except where otherwise
expressly provided) through the Fiscal Agent.
18 Governing Law and Submission
18.1 Governing Law: This Agreement shall be governed by and construed in
accordance with English law.
18.2 Jurisdiction: The courts of England are to have jurisdiction to settle
any disputes which may arise out of or in connection with this Agreement
and accordingly any legal action or proceedings arising out of or in
connection with this Agreement (Proceedings) may be brought in such courts.
Each of the Issuer, the Guarantor and the Paying Agents irrevocably submits
to the jurisdiction of such courts and waives any objection to Proceedings
in such courts whether on the ground of venue or on the ground that the
Proceedings have been brought in an inconvenient forum. These submissions
are for the benefit of the Paying Agents and shall not limit the right of
any of them to take Proceedings in any other court of competent
jurisdiction nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other jurisdiction
(whether concurrently or not).
18.3 Service of Process: Each of the Issuer and the Guarantor irrevocably
appoints The Law Debenture Trust Corporation p.l.c. of Princes House, 95
Gresham Street, London EC2V 7LY as its authorised agent for service of
process in England. If for any reason such agent shall cease to be such
agent for the service of process, each of the Issuer and the Guarantor
shall forthwith appoint a new agent for service of process in England and
deliver to the Fiscal Agent a copy of the new agents acceptance of that
appointment within 30 days. Nothing in this Agreement shall affect the
right to serve process in any other manner permitted by law. SCHEDULE 1Form
of Definitive Note On the front:
<PAGE>
SCHEDULE 1
Form of Definitive Note
On the front:
Denomination ISIN Series Certif. No.
FF[10,000/100,000/1,000,000] XS0086549564 [*] [*]
OLSTEN INTERNATIONAL B.V.
(Incorporated with limited liability in The Netherlands and established in
Amsterdam)
FF800,000,0006
per cent Guaranteed Notes due 2008
guaranteed by
OLSTEN CORPORATION
(Incorporated with limited liability in the State of Delaware)
This Note forms part of a series designated as specified in the title (the
Notes) of Olsten International B.V. (the Issuer). The Notes are subject to the
terms and conditions (the Conditions) endorsed hereon.
The Issuer for value received hereby promises to pay to the bearer of this Note
on 6 May 2008, or on such earlier date as the principal sum mentioned below may
become payable in accordance with the Conditions, the principal sum of:
[FF10,000 (Ten thousand French Francs)/FF100,000 (One hundred thousand French
Francs)/FF1,000,000 (One million French Francs)]
(or, if required pursuant to the Conditions, the equivalent amount in Euro,
calculated in accordance with the Conditions) together with interest on such
principal sum from 6 May 1998 at the rate of 6 per cent per annum payable in
arrear on 6 May in each year, subject to and in accordance with the Conditions.
This Note shall not be valid or become obligatory for any purpose until
authenticated by or on behalf of the Fiscal Agent.
In witness whereof the Issuer has caused this Note to be signed in facsimile on
its behalf.
Dated 6 May 1998
OLSTEN INTERNATIONAL B.V.
By:
[Managing Director]
This Note is authenticated by or
on behalf of the Fiscal Agent.
By:
Authorised Signatory
<PAGE>
Guarantee of OLSTEN CORPORATION
1 Guarantee: OLSTEN CORPORATION (the Guarantor) unconditionally and
irrevocably guarantees that, if for any reason OLSTEN INTERNATIONAL B.V.
(the Issuer) does not pay any sum payable by it under this Note or the
Coupons relating to it (whether or not attached to it) on the date
specified for such payment (whether on the normal due date, on acceleration
or otherwise), the Guarantor will pay that sum to the holder of this Note
or the relevant Coupon as the case may be (the Holder) in French Francs
(or, if so required by the Conditions, Euro) before close of business in
Paris on that date. All payments under this Guarantee by the Guarantor will
be made subject to Condition 7 of the Notes.
2 Guarantor as Principal Debtor: As between the Guarantor and the Holder
but without affecting the Issuers obligations, the Guarantor will be liable
under this Guarantee as if it were the sole principal debtor and not merely
a surety. Accordingly, it will not be discharged, nor will its liability be
affected, by anything which would not discharge it or affect its liability
if it were the sole principal debtor (including (1) any time, indulgence,
concession, waiver or consent at any time given to the Issuer or any other
person, (2) any amendment or supplement to any of the Conditions of the
Notes or to any security or other guarantee or indemnity, (3) the making or
absence of any demand on the Issuer or any other person for payment, (4)
the enforcement or absence of enforcement of this Note or the Coupons
relating to it or of any security or other guarantee or indemnity, (5) the
taking, existence or release of any security, guarantee or indemnity, (6)
the winding-up, dissolution, amalgamation, reconstruction or reorganisation
of the Issuer or any other person or (7) the illegality, invalidity or
unenforceability of or any defect in any provision of the Notes or the
Coupons or any of the Issuers obligations under any of them).
3 Guarantors Obligations Continuing: The Guarantors obligations under this
Guarantee are and will remain in full force and effect by way of continuing
security until no sum remains payable under this Note or the Coupons
relating to it. Furthermore, those obligations of the Guarantor are
additional to, and not instead of, any security or other guarantee or
indemnity at any time existing in favour of any person, whether from the
Guarantor or otherwise, and may be enforced without first having recourse
to the Issuer, any other person, any security or any other guarantee or
indemnity. The Guarantor irrevocably waives all notices and demands of any
kind.
4 Exercise of Guarantors Rights: So long as any sum remains payable under
this Note or the Coupons relating to it no right of the Guarantor, by
reason of the performance of any of its obligations under this Guarantee,
to be indemnified by the Issuer or to take the benefit of or enforce any
security or other guarantee or indemnity shall be exercised or enforced.
5 Avoidance of Payments: The Guarantor shall on demand indemnify the
relevant Holder against any cost, loss, expense or liability sustained or
incurred by it as a result of it being required for any reason (including
any bankruptcy, insolvency, winding-up, dissolution or similar law or any
jurisdiction) to refund all or part of any amount received or recovered by
it in respect of any sum payable by the Issuer under this Note or the
Coupons relating to it and shall in any event pay to it on demand the
amount as refunded by it.
<PAGE>
6 Indemnity: As separate, independent and alternative stipulations, the
Guarantor unconditionally and irrevocably agrees: (1) that any sum which,
although expressed to be payable by the Issuer under this Note or the
Coupons relating to it, is for any reason (whether or not now existin and
whether or not now known or becoming known to the Issuer, the Guarantor or
any Noteholder or Couponholder) not recoverable from the Guarantor on the
basis of a guarantee shall nevertheless be recoverable from it as if it
were the sole principal debtor and shall be paid by it to the relevant
Holder on demand and (2) as a primary obligation to indemnify each Holder
against any loss suffered by it as a result of any sum expressed to be
payable by the Issuer under this Note or the Coupons relating to it not
being paid by the time, on the date and otherwise in the manner specified
therein or any payment obligation of the Issuer under this Note or the
Coupons relating to it being or becoming void, voidable or unenforceable
for any reason (whether or not now existing and whether or not now known or
becoming known to the Issuer, the Guarantor or any Noteholder or
Couponholder), the amount of that loss being the amount expressed to be
payable by the Issuer in respect of the relevant sum.
7 Incorporation of Terms: The Guarantor agrees that it shall comply with
and be bound by those provisions contained in the Conditions of the Notes
which relate to it.
8 Governing Law: This Guarantee shall be governed by and construed in
accordance with English law.
Dated 6 May 1998
OLSTEN CORPORATION
By:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE
CODE.
Note: if Euro-denominated Notes are to be issued, the above form shall
apply mutatis mutandis. On the back:
<PAGE>
FISCAL AGENT
CREDIT LYONNAIS LUXEMBOURG S.A.
26A, Boulevard Royal
L-2449 Luxembourg
PAYING AGENTS
CREDIT LYONNAIS
19, boulevard des Italiens
75002 Paris
<PAGE>
Form of Coupon
On the front:
OLSTEN INTERNATIONAL B.V.
FF800,000,000 6 per cent Guaranteed Notes due 2008 Guaranteed by OLSTEN
CORPORATION
Coupon for an amount of [FF600/FF6,000/FF60,000] due on 6 May [1999/2000/2001/
2002/2003/2004/2005/2006/2007/2008].
This Coupon is payable to bearer (subject to the Conditions endorsed on the Note
to which this Coupon relates, which shall be binding upon the holder of this
Coupon whether or not it is for the time being attached to such Note) at the
specified offices of the Paying Agents set out on the reverse hereof (or any
further or other Paying Agents or specified offices duly appointed or nominated
and notified to the Noteholders).
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
OLSTEN INTERNATIONAL B.V.
By:
[Managing Director]
Cp No. Denomination ISIN Series Certif. No.
XS0086549564
Note: if Euro-denominated Notes are to be issued, the above form shall apply
mutatis mutandis.
On the back:
FISCAL AGENT
CREDIT LYONNAIS LUXEMBOURG S.A., 26A Boulevard Royal, L-2449, Luxembourg
PAYING AGENTS
CREDIT LYONNAIS, 19 boulevard des Italiens, 75002 Paris
<PAGE>
SCHEDULE 2
Part 1
Form of Temporary Global Note
ISIN: XS0086549564
OLSTEN INTERNATIONAL B.V.
(Incorporated with limited liability in The Netherlands and established in
Amsterdam)
FF800,000,000
6 per cent Guaranteed Notes due 2008
guaranteed by
OLSTEN CORPORATION
(Incorporated with limited liability in the State of Delaware)
Temporary Global Note
OLSTEN INTERNATIONAL B.V. (the Issuer) for value received promises to pay to
bearer the sum of
EIGHT HUNDRED MILLION FRENCH FRANCS (FF800,000,000)
(or, if required pursuant to the Conditions (as defined below), the equivalent
amount in Euro, calculated in accordance with the Conditions) on 6 May 2008 (or
on such earlier date as such principal sum may become payable in accordance with
the terms and conditions (the Conditions) of the Notes designated above (the
Notes) set out in Schedule 1 to the fiscal agency agreement dated 6 May 2008
(the Fiscal Agency Agreement) between the Issuer, OLSTEN CORPORATION as
Guarantor, CREDIT LYONNAIS LUXEMBOURG S.A. as fiscal agent and the paying agents
named in it) upon presentation and surrender of this Temporary Global Note and
to pay interest at the rate of 6 per cent per annum on such principal sum in
arrear on 6 May in each year in accordance with the Conditions. The fiscal agent
for the time being is referred to as the Fiscal Agent.
On or after 15 June 1998 (the Exchange Date) this Temporary Global Note may be
exchanged in whole or in part (free of charge to the holder) by its presentation
and, on exchange in full, surrender to or to the order of the Fiscal Agent for
interests in a permanent Global Note (the Global Note) in bearer form in an
aggregate principal amount equal to the principal amount of this Temporary
Global Note submitted for exchange with respect to which there shall be
presented to the Fiscal Agent a certificate dated no earlier than the Exchange
Date from Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System (Euroclear) or Cedel Bank, socit anonyme
(Cedel) substantially to the following effect:
Certificate
OLSTEN INTERNATIONAL B.V. (the Issuer)
FF800,000,000
6 per cent Guaranteed Notes due 2008
Common Code 8654956 ISIN XS0086549564 (the Notes)
This is to certify that, based solely on certificates we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set out below (our Member Organisations) substantially to the effect set
out in the temporary global Note in respect of the Notes, as of the date hereof,
principal amount of the Notes (1) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States federal
<PAGE>
income taxation regardless of its source (United States persons), (2) is owned
by United States persons that (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) (financial institutions)) purchasing for their own account or
for resale, or (b) acquired the Notes through foreign branches of United States
financial institutions and who hold the Notes through such United States
financial institutions on the date hereof (and in either case (a) or (b), each
such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuers agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(3) is owned by United States or foreign financial institutions for purposes of
resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or
foreign financial institutions described in clause (3) above (whether or not
also described in clause (1) or (2)) have certified that they have not acquired
the Notes for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
We further certify (1) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global Note excepted in such certificates and (2) that
as of the date hereof we have not received any notification from any of our
Member Organisations to the effect that the statements made by such Member
Organisation with respect to any portion of the part submitted herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
are no longer true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with certain tax
laws of the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorise you to produce
this certificate to any interested party in such proceedings.
Yours faithfully
[Morgan Guaranty Trust Company of New York, Brussels Office, as operator of the
Euroclear System] or [Cedel Bank, socit anonyme]
By: * Dated: *
Any person appearing in the records of Euroclear or Cedel as entitled to an
interest in this Temporary Global Note may require the exchange of an
appropriate part of this Temporary Global Note for an equivalent interest in the
Global Note by delivering or causing to be delivered to Euroclear or Cedel a
certificate dated not more than 15 days before the Exchange Date in
substantially the following form (copies of which will be available at the
office of Euroclear in Brussels and Cedel in Luxembourg):
<PAGE>
Certificate
OLSTEN INTERNATIONAL B.V. (the Issuer)
FF800,000,000
6 per cent Guaranteed Notes due 2008
Common Code 8654956 ISIN XS0086549564 (the Notes)
To: Morgan Guaranty Trust Company of New York, Brussels Office, as operator of
the Euroclear System or Cedel Bank, socit anonyme.
This is to certify that as of the date hereof, and except as set out below, the
Notes held by you for our account (1) are owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States federal income taxation regardless of its source (United States
person(s)), (2) are owned by United States person(s) that (a) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) (financial institutions)) purchasing for
their own account or for resale, or (b) acquired the Notes through foreign
branches of United States financial institutions and who hold the Notes through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on its
own behalf or through its agent, that you may advise the Issuer or the Issuers
agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (3) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition if
the owner of the Notes is a United States or foreign financial institution
described in clause (3) above (whether or not also described in clause (1) or
(2)) this is to further certify that such financial institution has not acquired
the Notes for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, United States means the United States of America (including the
States and the District of Columbia) and its possessions include Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to that date on
which you intend to submit your certificate relating to the Notes held by you
for our account in accordance with your documented procedures if any applicable
statement herein is not correct on such date, and in the absence of any such
notification it may be assumed that this certificate applies as of such date.
This certificate excepts and does not relate to principal amount of such
interest in the Notes in respect of which we are not able to certify and as to
which we understand exchange for an equivalent interest in the Global Note (or,
if relevant, exercise of any rights or collection of any interest) cannot be
made until we do so certify.
We understand that this certificate is required in connection with certain tax
laws of the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorise you to produce
this certificate to any interested party in such proceedings.
Dated:
By:
<PAGE>
[Name of person giving certificate]
As, or as agent for, the beneficial owner(s) of the above Notes to
which this certificate relates.
Upon any exchange of a part of this Temporary Global Note for an equivalent
interest in the Global Note, the portion of the principal amount hereof so
exchanged shall be endorsed by or on behalf of the Fiscal Agent in the Schedule
hereto, whereupon the principal amount hereof shall be reduced for all purposes
by the amount so exchanged and endorsed.
The Global Note will be exchangeable in accordance with its terms for definitive
Notes (the Definitive Notes) with Coupons attached. The Global Note and the
Definitive Notes will be substantially in the forms scheduled to the Fiscal
Agency Agreement.
This Temporary Global Note is subject to the Conditions and until the whole of
this Temporary Global Note shall have been exchanged for equivalent interests in
the Global Note the holder hereof shall in all respects be entitled to the same
benefits as if he were the holder of the Global Note for interests in which it
may be exchanged (or the relevant part of it as the case may be) except that
(unless exchange of this Temporary Global Note for the relevant interest in the
Global Note shall be improperly withheld or refused by or on behalf of the
Issuer) no person shall be entitled to receive any payment on this Temporary
Global Note.
No provision of this Temporary Global Note shall alter or impair the obligation
of the Issuer and the Guarantor to pay the principal of and interest on the
Notes when due in accordance with the Conditions and the Guarantees.
This Temporary Global Note shall not be valid or become obligatory for any
purpose until authenticated by or on behalf of the Fiscal Agent.
This Temporary Global Note shall be governed by and construed in accordance with
English law.
In witness whereof the Issuer has caused this Temporary Global Note to be signed
on its behalf.
Dated 6 May 1998
OLSTEN INTERNATIONAL B.V.
By:
This Temporary Global Note is authenticated by or on behalf of the Fiscal Agent.
By:
Authorised Signatory
<PAGE>
Guarantee of OLSTEN CORPORATION
The provisions of the Guarantee of OLSTEN CORPORATION as set out in Schedule 1
to the above-mentioned Fiscal Agency Agreement shall be deemed to be set out
herein as if references therein to the Notes and Coupons were to this Temporary
Global Note and references therein to the Conditions of the Notes were to the
Conditions of the Notes as set out in such Schedule as amended by the provisions
of the Global Note.
This Guarantee shall be governed by and construed in accordance with English
law.
In witness whereof OLSTEN CORPORATION has caused this Guarantee to be duly
executed.
Dated 6 May 1998
OLSTEN CORPORATION
By:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
Schedule of Exchanges for Interests In the Global Note
The following exchanges of an interest in this Temporary Global Note for an
interest in the Global Note have been made:
Date of Exchange
Amount of decrease in principal amount of this Temporary Global Note
Principal amount of this Temporary Global Note following such decrease
Notation made by or on behalf of the Fiscal Agent
<PAGE>
SCHEDULE 2
Part 2
Form of Permanent Global Note
ISIN: XS0086549564
OLSTEN INTERNATIONAL B.V.
(Incorporated with limited liability in The Netherlands and established in
Amsterdam)
FF800,000,000
6 per cent Guaranteed Notes due 2008
guaranteed by
OLSTEN CORPORATION
(Incorporated with limited liability in the State of Delaware)
Global Note
OLSTEN INTERNATIONAL B.V. (the Issuer) for value received promises to pay to
bearer the principal amount referred to in the next paragraph not exceeding
EIGHT HUNDRED MILLION FRENCH FRANCS (FF800,000,000)
(or, if required pursuant to the Conditions (as defined below), the equivalent
amount in Euro, calculated in accordance with the Conditions) on 6 May 2008 (or
on such earlier date as such principal amount may become payable in accordance
with the terms and conditions (the Conditions) of the Notes designated above
(the Notes) set out in Schedule 1 to the fiscal agency agreement dated 6 May
1998 (the Fiscal Agency Agreement) between the Issuer, OLSTEN CORPORATION as
Guarantor, CREDIT LYONNAIS LUXEMBOURG S.A. as fiscal agent and the paying agents
named in it) upon presentation and surrender of this Global Note and to pay
interest at the rate of 6 per cent per annum on such principal amount in arrear
on 6 May in each year in accordance with the Conditions. The fiscal agent and
the paying agents for the time being are referred to respectively as the Fiscal
Agent and the Paying Agents (which expression shall include the Fiscal Agent).
The aggregate principal amount from time to time of this Global Note shall be
that amount not exceeding FF800,000,000 (or, if required pursuant to the
Conditions the equivalent amount in Euro, calculated in accordance with the
Conditions) as shall be shown by the latest entry in the fourth column of
Schedule A hereto, which shall be completed by or on behalf of the Fiscal Agent
upon exchange of the whole or a part of the Temporary Global Note initially
representing the Notes for a corresponding interest herein or upon the
redemption or purchase and cancellation of Notes represented hereby or the
partial exchange hereof for definitive Notes (Definitive Notes) or exchange for
direct enforcement rights, all as described below.
This Global Note is exchangeable in whole but not, except as provided in the
next paragraph, in part (free of charge to the holder) for the Definitive Notes
described below (1) if this Global Note is held on behalf of Euroclear or Cedel
or the Alternative Clearing System (each as defined under Notices below) and any
such clearing system is closed for business for a continuous period of 14 days
(other than by reason of holidays, statutory or otherwise) or announces an
intention permanently to cease business or does in fact do so, (2) if principal
in respect of any Notes is not paid when due and payable or (3) if the Issuer or
the Guarantor (as defined below), as the case may be, would suffer a material
disadvantage in respect of the Notes as a result of a change in the laws or
regulations (taxation or otherwise) of any jurisdiction referred to in Condition
8 which would not be suffered were the Notes in definitive form and a
certificate to such effect signed by two managing directors of the Issuer or two
directors of the Guarantor, as the case may be, is delivered to the Fiscal Agent
<PAGE>
for display to Noteholders or (4) (unless a default notice has been given as
referred to in Default below) by the Issuer giving notice. Thereupon (in the
case of (1) or (2) above) the holder may give notice to the Fiscal Agent, and
(in the case of (3) and (4) above) the Issuer may give notice to the Fiscal
Agent and the Noteholders, of its intention to exchange this Global Note for
Definitive Notes on or after the Exchange Date specified in the notice.
If principal in respect of any Notes is not paid when due and payable the holder
of this Global Note may by notice to the Fiscal Agent (which may but need not be
the default notice referred to in Default below) require the exchange of a
specified principal amount of this Global Note (which may be equal to or
(provided that if this Global Note is held by or on behalf of Euroclear, Cedel
and/or the Alternative Clearing System, Euroclear, Cedel and/or the Alternative
Clearing System agree) less than the outstanding principal amount of Notes
represented hereby) for Definitive Notes on or after the Exchange Date specified
in such notice.
On or after any Exchange Date the holder of this Global Note may surrender this
Global Note or, in the case of a partial exchange, present it for endorsement to
or to the order of the Fiscal Agent. In exchange for this Global Note, or on
endorsement in respect of the part thereof to be exchanged, the Issuer shall
deliver, or procure the delivery of, an equal aggregate principal amount of duly
executed and authenticated Definitive Notes (having attached to them all Coupons
in respect of interest which has not already been paid on this Global Note),
security printed in accordance with applicable legal and stock exchange
requirements and substantially in the form set out in Schedule 1 to the Fiscal
Agency Agreement. On exchange in full of this Global Note, the Issuer will, if
the holder so requests, procure that it is cancelled and returned to the holder
together with the relevant Definitive Notes.
"Exchange Date" means a day falling not less than 60 days, or, in the case of
exchange following principal in respect of any Notes not being paid when due and
payable, 30 days, after that on which the notice requiring exchange is given and
on which banks are open for business in the city in which the specified office
of the Fiscal Agent is located and, except in the case of exchange pursuant to
(1) above, in the cities in which Euroclear and Cedel or, if relevant, the
Alternative Clearing System (each as defined under Notices below), are located.
If, for any actual or alleged reason which would not have been applicable had
there been no exchange of this Global Note (or part of this Global Note) or in
any other circumstances whatsoever, the Issuer does not perform or comply with
any one or more of what are expressed to be its obligations under any Definitive
Notes, then any right or remedy relating in any way to the obligation(s) in
question may be exercised or pursued on the basis of this Global Note despite
its stated cancellation after its exchange in full, as an alternative, or in
addition, to the Definitive Notes (or the Coupons appertaining to them as
appropriate). With this exception, upon exchange in full of this Global Note for
Definitive Notes, this Global Note shall become void.
Except as otherwise described herein, this Global Note is subject to the
Conditions and, until it is exchanged for Definitive Notes, the holder hereof
shall in all respects be entitled to the same benefits as if it were the holder
of the Definitive Notes for which it may be exchanged and as if such Definitive
Notes had been issued on the date of this Global Note.
The Conditions shall be modified with respect to Notes represented by this
Global Note by the following provisions:
<PAGE>
Payments
Principal and interest in respect of this Global Note shall be paid to its
holder against presentation and (if no further payment falls to be made on it)
surrender of it to or to the order of the Fiscal Agent (or to or to the order of
such other Paying Agent as shall have been notified to the Noteholders for this
purpose) which shall endorse such payment or cause such payment to be endorsed
in the appropriate Schedule hereto (such endorsement being prima facie evidence
that the payment in question has been made). References in the Conditions to
Coupons and Couponholders shall be construed accordingly. No person shall
however be entitled to receive any payment on this Global Note (or such part of
this Global Note which is required to be exchanged) falling due after any
Exchange Date, unless exchange of this Global Note for Definitive Notes is
improperly withheld or refused by or on behalf of the Issuer or the Issuer does
not perform or comply with any one or more of what are expressed to be its
obligations under any Definitive Notes.
Notices
So long as this Global Note is held on behalf of Morgan Guaranty Trust Company
of New York, Brussels Office, as operator of the Euroclear system (Euroclear) or
Cedel Bank, socit anonyme (Cedel) or any other clearing system (the Alternative
Clearing System), notices required to be given to Noteholders may be given by
their being delivered to Euroclear, Cedel or, as the case may be, the
Alternative Clearing System, rather than by publication as required by the
Conditions, except that, (i) so long as the Notes are listed on the Luxembourg
Stock Exchange and the rules of that Exchange so require, notices shall also be
published in a leading newspaper having general circulation in Luxembourg (which
is expected to be the Luxemburger Wort) and (ii) so long as the Notes are listed
on the Paris Stock Exchange and the rules of that Exchange so require, notices
shall also be published in a leading newspaper having general circulation in
France (which is expected to be La Tribune).
Prescription
Claims in respect of principal and interest in respect of this Global Note will
become void unless it is presented for payment within a period of 10 years (in
the case of principal) and five years (in the case of interest) from the
appropriate Relevant Date (as defined in Condition 8).
Meetings The holder hereof shall (unless this Global Note represents only one
Note) be treated as two persons for the purposes of any quorum requirements of a
meeting of Noteholders and, at any such meeting, as having one vote in respect
of each FF10,000 (or, after the Redenomination Date and/or Specified Date (each
as defined in the Conditions), in respect of the lowest denomination in Euro of
the Notes) principal amount of Notes for which this Global Note may be
exchanged.
Purchase and Cancellation
Cancellation of any Note represented by this Global Note which is required by
the Conditions to be cancelled will be effected by reduction in the principal
amount of this Global Note on its presentation to or to the order of the Fiscal
Agent for notation in Schedule A. Notes may only be purchased by the Issuer or
the Guarantor or any of their respective Subsidiaries if they are purchased
together with the right to receive all future payments of interest thereon.
<PAGE>
Default
The holder hereof may exercise the right to declare Notes represented by this
Global Note due and payable under Condition 9 by stating in the notice (the
default notice) to the Fiscal Agent the principal amount of Notes (which may be
less than the outstanding principal amount hereof) to which such notice relates.
If principal in respect of any Notes is not paid when due and payable (but
subject as provided below), the holder of this Global Note may from time to time
elect that Direct Rights under the provisions of Schedule C shall come into
effect. Such election shall be made by notice to the Fiscal Agent and
presentation of this Global Note to or to the order of the Fiscal Agent for
reduction of the principal amount of Notes represented by this Global Note to FF
zero (or to such other figure as shall be specified in the notice) by
endorsement in Schedule A and the corresponding endorsement in Schedule C of
such principal amount of Notes formerly represented hereby as the principal
amount of Notes in respect of which Direct Rights have arisen under Schedule C.
Upon such notice being given the appropriate Direct Rights shall take effect.
No such election may however be made on or before an Exchange Date fixed in
accordance with this Global Note with respect to the Notes to which that
Exchange Date relates unless the holder elects in such notice that the exchange
in question shall no longer take place.
Redenomination and Consolidation
On the Specified Date (as defined in the Conditions) the Notes shall become New
Notes (as defined in the Conditions) without the need for the Global Note to be
presented for exchange. This Global Note may be amended or replaced by the
Issuer for the purposes of taking account of new denominations of the Notes
following a redenomination of the Notes in accordance with Condition 2. On
consolidation of the Notes, the Issuer may issue a replacement Global Note in
exchange for the global notes of the issues consolidated. Any such consolidation
may, in such circumstances, require a change in the common depositary or
depositary, as the case may be.
No provision of this Global Note shall alter or impair the obligation of the
Issuer and the Guarantor to pay the principal and premium of and interest on the
Notes when due in accordance with the Conditions and the Guarantees.
This Global Note is a bearer document and negotiable and accordingly:
(a) is freely transferable by delivery and such transfer shall operate to
confer upon the transferee all rights and benefits appertaining hereto and
to bind the transferee with all obligations appertaining hereto pursuant to
the Conditions
(b) the holder of this Global Note is and shall be absolutely entitled as
against all previous holders to receive all amounts by way of principal,
premium, interest or otherwise payable in respect of this Global Note and
the Issuer has waived against such holder and any previous holder of this
Global Note all rights of set-off or counterclaim which would or might
otherwise be available to it in respect of the obligations evidenced by
this Global Note
(c) payment upon due presentation of this Global Note as provided herein
shall operate as a good discharge against such holder and all previous
holders of this Global Note.
<PAGE>
This Global Note shall not be valid or become obligatory for any purpose until
authenticated by or on behalf of the Fiscal Agent.
This Global Note shall be governed by and construed in accordance with English
law.
In witness whereof this Global Note has been executed as a deed on 6 May 1998.
OLSTEN INTERNATIONAL B.V.
By:
Certificate of Authentication
This Global Note is authenticated by or on behalf of the Fiscal Agent.
By:
Authorised Signatory
Guarantee of OLSTEN CORPORATION
The provisions of the Guarantee of OLSTEN CORPORATION (the Guarantor) as set out
in Schedule 1 to the above-mentioned Fiscal Agency Agreement shall be deemed to
be set out herein as if references therein to the Notes and Coupons were to this
Global Note and references therein to the Conditions of the Notes were to the
Conditions of the Notes as set out in such Schedule as amended by the provisions
of this Global Note.
If Direct Rights arise under Schedule C, the provisions of the Guarantee of
OLSTEN CORPORATION as set out in Schedule 1 to the Fiscal Agency Agreement,
shall however be deemed to be set out herein and to take effect in relation to
such Direct Rights as if references therein to (i) the Notes and Coupons were to
the Direct Rights arising in respect of the Principal Amount of the Entries
corresponding to the relevant Notes and Coupons, (ii) the Holder, the
Noteholders and Couponholders were to the corresponding Relevant Account Holders
all as provided for in Schedule C and (iii) the Conditions of the Notes were to
the provisions of Schedule C.
This Guarantee shall be governed by and construed in accordance with English
law.
In witness whereof this Guarantee has been executed as a deed on 6 May 1998.
OLSTEN CORPORATION
By:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
<PAGE>
SCHEDULE A
Principal Amount of this Global Note
The aggregate principal amount of Notes represented by this Global Note is as
shown by the latest entry made in the fourth row below. Increases in the
principal amount of this Global Note following exchanges of a part of the
Temporary Global Note for interests in this Global Note and reductions in the
principal amount of this Global Note following redemption, payment of cash
adjustments pursuant to a redenomination of the Notes in accordance with
Condition 2 or partial exchange for Definitive Notes or Direct Rights or the
purchase and cancellation of Notes are entered in the second and third rows
below.
Date: 6 May 1998
Reason for change in the principal amount of this Global Note*: N/A
Amount of such change: N/A
Initial principal amount and principal amount of this Global Note following
such change: FF zero
Notation made by or on behalf of the Fiscal Agent (other than in respect of
the initial principal amount): N/A
* State whether increase/reduction following (1) exchange of part of Temporary
Global Note, (2) redemption of Notes, (3) purchase and cancellation of Notes,
(4) payment of cash adjustments pursuant to a redenomination of the Notes or (5)
exchange of part of this Global Note for Definitive Notes or Direct Rights.
<PAGE>
SCHEDULE B
Interest Payments in Respect of this Global Note
The following payments of interest in respect of this Global Note and the Notes
represented by this Global Note have been made:
Date Made
Amount of Interest due and payable
Amount of interest paid
Notation made by or on behalf of the Fiscal Agent
SCHEDULE C
Direct Enforcement Rights
This Global Note has effect as a deed poll conferring on Relevant Account
Holders the Direct Rights referred to in this Schedule in respect of the
principal amount of Notes stated in paragraph 5 of this Schedule.
1 Interpretation:
In this Schedule, terms are used with the same meanings as in the Global
Note, and in addition:
"Clearing System Operator" means the operator of each of Euroclear and
Cedel and, if relevant, the Alternative Clearing System
"Direct Rights" means the rights referred to in paragraph 2
"Entry" means any entry relating to this Global Note (or to the relevant
part of it) or the Notes represented by it which is or has been made in the
securities account of any account holder with a Clearing System Operator
and Entries shall have a corresponding meaning
"Principal Amount" means, in respect of any Entry, the amount which would
be due to the holder of the account in which such Entry is credited were
the principal amount of this Global Note or the Notes represented by it in
respect of which such Entry was made to be paid in full at its maturity
"Relevant Account Holder" means the holder of any account with a Clearing
System Operator which at the Relevant Time has credited to its securities
account with such Clearing System Operator an Entry or Entries in respect
of this Global Note (or the relevant part of it) or the Notes represented
by it except for a Clearing System Operator in its capacity as an account
holder of another Clearing System Operator and
"Relevant Time" means the time when Direct Rights take effect as
contemplated by this Global Note.
2 Direct Rights:
Each Relevant Account Holder shall at the Relevant Time acquire against the
Issuer all rights which the Relevant Account Holder in question would have
had if, immediately before the Relevant Time, it had been the holder of the
Definitive Notes issued on the issue date of this Global Note in an
aggregate principal amount equal to the Principal Amount of the relevant
<PAGE>
Entry including, without limitation, the right to receive all payments due
at any time in respect of such Definitive Notes, other than payments
corresponding to any already made under this Global Note. No further action
shall be required on the part of any person in order for such Direct Rights
to be acquired and for each Relevant Account Holder to have the benefit of,
and to enforce, rights corresponding to all the provisions of relevant
Definitive Notes as if they had been issued and as if such provisions had
been specifically incorporated in this Schedule, other than the right to
receive payments corresponding to any already made under this Global Note.
3 Evidence: The records of each Clearing System Operator shall, in the
absence of manifest error, be conclusive evidence of the identity of the
Relevant Account Holders, the number of Entries credited to the securities
account of each Relevant Account Holder with such Clearing System Operator
at the Relevant Time and the Principal Amount of an Entry. For the purposes
of this Clause a statement issued by a Clearing System Operator stating:
3.1 the name of the Relevant Account Holder to or in respect of which it is
issued
3.2 the number of Entries credited to the securities account of such
Relevant Account Holder with such Clearing System Operator as at the
opening of business on the first day on which the Clearing System Operator
is open for business following the Relevant Time and
3.3 the Principal Amount of any Entry in the accounts of such Clearing
System Operator, shall be conclusive evidence of the records of such
Clearing System Operator at the Relevant Time (but without prejudice to any
other means of producing such records in evidence). In the event of a
dispute, in the absence of manifest error, the determination of the
Relevant Time by a Clearing System Operator shall be final and conclusive
for all purposes in connection with the Relevant Account Holders with
securities accounts with such Clearing System Operator. Any Relevant
Account Holder may, in any proceedings relating to this Global Note,
protect and enforce its rights arising out of this Schedule in respect of
any Entry to which it is entitled upon the basis of a statement by a
Clearing System Operator as provided in this Clause and a copy of this
Global Note certified as being a true copy by a duly authorised officer of
any Clearing System Operator or the Fiscal Agent without the need for
production in such proceedings or in any court of the actual records or
this Global Note. Any such certification shall be binding, except in the
case of manifest error or as may be ordered by any court of competent
jurisdiction, upon the Issuer and all Relevant Account Holders. This Clause
shall not limit any right of any Relevant Account Holder to the production
of the originals of such records or documents in evidence.
4 Title to Entries: Any Relevant Account Holder may protect and enforce its
rights arising out of this Global Note in respect of any Entry to which it
is entitled in its own name without the necessity of using the name of or
obtaining any authority from any predecessor in title. Any Relevant Account
Holder is entitled to receive payment of the Principal Amount of its Entry
and of all other sums referable to its Direct Rights to the exclusion of
any other person and payment in full by the Issuer to such Relevant Account
Holder shall discharge the Issuer from all obligations in respect of such
Entry and such Direct Rights.
5 Principal Amount:
<PAGE>
The principal amount of Notes in respect of which Direct Rights have arisen
under this Global Note is shown by the latest entry in the third row below:
Date: 6 May 1998
Amount of increase in principal amount of Notes in respect of which Direct
Rights have arisen: N/A
Initial principal amount and principal amount following such increase
Notation by or on behalf of the Fiscal Agent (other than in respect of
initial principal amount): FF zero
<PAGE>
SCHEDULE 3
Provisions for Meetings of Noteholders
Interpretation
1 In this Schedule:
1.1 references to a meeting are to a meeting of Noteholders and include,
unless the context otherwise requires, any adjournment
1.2 agent means a holder of a voting certificate or a proxy for a
Noteholder
1.3 block voting instruction means an instruction issued in accordance with
paragraphs 8 to 14
1.4 Extraordinary Resolution means a resolution passed at a meeting duly
convened and held in accordance with this Agreement by a majority of at
least 75 per cent of the votes cast
1.5 voting certificate means a certificate issued in accordance with
paragraphs 5, 6, 7 and 14 and
1.6 references to persons representing a proportion of the Notes are to
Noteholders or agents holding or representing in the aggregate at least
that proportion in principal amount of the Notes for the time being
outstanding.
Powers of meetings
2 A meeting shall, subject to the Conditions and without prejudice to any
powers conferred on other persons by this Agreement, have power by
Extraordinary Resolution:
2.1 to sanction any proposal by the Issuer or the Guarantor for any
modification, abrogation, variation or compromise of, or arrangement in
respect of, the rights of the Noteholders and/or the Couponholders against
the Issuer or the Guarantor, whether or not those rights arise under the
Notes
2.2 to sanction the exchange or substitution for the Notes of, or the
conversion of the Notes into, shares, notes or other obligations or
securities of the Issuer, the Guarantor or any other entity
2.3 to assent to any modification of this Agreement, the Notes or the
Coupons proposed by the Issuer, the Guarantor or the Fiscal Agent
2.4 to authorise anyone to concur in and do anything necessary to carry out
and give effect to an Extraordinary Resolution
2.5 to give any authority, direction or sanction required to be given by
Extraordinary Resolution
2.6 to appoint any persons (whether Noteholders or not) as a committee or
committees to represent the Noteholders interests and to confer on them any
powers or discretions which the Noteholders could themselves exercise by
Extraordinary Resolution and
<PAGE>
2.7 to approve the substitution of any entity for the Issuer or the
Guarantor (or any previous substitute) as principal debtor or guarantor
under this Agreement provided that the special quorum provisions in
paragraph 19 shall apply to any Extraordinary Resolution (a special quorum
resolution) for the purpose of sub-paragraph 2.2 or 2.7 or for the purpose
of making a modification to this Agreement, the Notes or the Coupons which
would have the effect of:
(i) modifying the maturity of the Notes or the dates on which interest
is payable on them or
(ii) reducing or cancelling the principal amount of or interest on, or
varying the method of calculating the rate of interest or reducing the
minimum rate of interest on, the Notes
(iii) changing the currency of payment of the Notes or the Coupons
(other than as provided by the Conditions) or
(iv) modifying the provisions in this Schedule concerning the quorum
required at a meeting or the majority required to pass an
Extraordinary Resolution or
(v) modifying or cancelling the Guarantees or
(vi) amending this proviso.
Convening a meeting
3 The Issuer or the Guarantor may at any time convene a meeting. If it
receives a written request by Noteholders holding at least 10 per cent in
principal amount of the Notes for the time being outstanding and is
indemnified to its satisfaction against all costs and expenses, the Issuer
shall convene a meeting. Every meeting shall be held at a time and place
approved by the Fiscal Agent.
4 At least 21 days notice (exclusive of the day on which the notice is
given and of the day of the meeting) shall be given to the Noteholders. A
copy of the notice shall be given by the party convening the meeting to the
other parties. The notice shall specify the day, time and place of meeting
and the nature of the resolutions to be proposed and shall explain how
Noteholders may appoint proxies or representatives, obtain voting
certificates and use block voting instructions and the details of the time
limits applicable.
Arrangements for voting
5 If a holder of a Note wishes to obtain a voting certificate in respect of
it for a meeting, he must deposit it for that purpose at least 48 hours
before the time fixed for the meeting with a Paying Agent or to the order
of a Paying Agent with a bank or other depositary nominated by the Paying
Agent for the purpose. The Paying Agent shall then issue a voting
certificate in respect of it.
6 A voting certificate shall:
6.1 be a document in the English language
6.2 be dated
<PAGE>
6.3 specify the meeting concerned and the serial numbers of the Notes
deposited and
6.4 entitle, and state that it entitles, its bearer to attend and vote at
that meeting in respect of those Notes.
7 Once a Paying Agent has issued a voting certificate for a meeting in
respect of a Note, it shall not release the Note until either:
7.1 the meeting has been concluded, or
7.2 the voting certificate has been surrendered to the Paying Agent.
8 If a holder of a Note wishes the votes attributable to it to be included
in a block voting instruction for a meeting, then, at least 48 hours before
the time fixed for the meeting, (i) he must deposit the Note for that
purpose with a Paying Agent or to the order of a Paying Agent with a bank
or other depositary nominated by the Paying Agent for the purpose and (ii)
he or a duly authorised person on his behalf must direct the Paying Agent
how those votes are to be cast. The Paying Agent shall issue a block voting
instruction in respect of the votes attributable to all Notes so deposited.
9 A block voting instruction shall:
9.1 be a document in the English language
9.2 be dated
9.3 specify the meeting concerned
9.4 list the total number and serial numbers of the Notes deposited,
distinguishing with regard to each resolution between those voting for and
those voting against it
9.5 certify that such list is in accordance with Notes deposited and
directions received as provided in paragraphs 8, 11 and 14 and 9.6 appoint
a named person (a proxy) to vote at that meeting in respect of those Notes
and in accordance with that list. A proxy need not be a Noteholder.
10 Once a Paying Agent has issued a block voting instruction for a meeting
in respect of the votes attributable to any Notes:
10.1 it shall not release the Notes, except as provided in paragraph 11,
until the meeting has been concluded and
10.2 the directions to which it gives effect may not be revoked or altered
during the 48 hours before the time fixed for the meeting.
11 If the receipt for a Note deposited with a Paying Agent in accordance
with paragraph 8 is surrendered to the Paying Agent at least 48 hours
before the time fixed for the meeting, the Paying Agent shall release the
Note and exclude the votes attributable to it from the block voting
instruction.
12 Each block voting instruction shall be deposited at least 24 hours
before the time fixed for the meeting at the specified office of the Fiscal
Agent or such other place as the Issuer shall designate or approve, and in
default it shall not be valid unless the chairman of the meeting decides
otherwise before the meeting proceeds to business. If the Issuer requires,
<PAGE>
a notarially certified copy of each block voting instruction shall be
produced by the proxy at the meeting but the Issuer need not investigate or
be concerned with the validity of the proxys appointment.
13 A vote cast in accordance with a block voting instruction shall be valid
even if it or any of the Noteholders instructions pursuant to which it was
executed has previously been revoked or amended, unless written intimation
of such revocation or amendment is received from the relevant Paying Agent
by the Fiscal Agent at its specified office (or such other place as may
have been specified by the Issuer for the purpose) or by the chairman of
the meeting in each case at least 24 hours before the time fixed for the
meeting.
14 No Note may be deposited with or to the order of a Paying Agent at the
same time for the purposes of both paragraph 5 and paragraph 8 for the same
meeting.
Chairman
15 The chairman of a meeting shall be such person as the Issuer may
nominate in writing, but if no such nomination is made or if the person
nominated is not present within 15 minutes after the time fixed for the
meeting the Noteholders or agents present shall choose one of their number
to be chairman, failing which the Issuer may appoint a chairman.
16 The chairman may, but need not, be a Noteholder or agent. The chairman
of an adjourned meeting need not be the same person as the chairman of the
original meeting.
Attendance
17 The following may attend and speak at a meeting:
17.1 Noteholders and agents
17.2 the chairman
17.3 the Issuer, the Guarantor and the Fiscal Agent (through their
respective representatives) and their respective financial and legal
advisers.
No one else may attend or speak.
Quorum and Adjournment
18 No business (except choosing a chairman) shall be transacted at a
meeting unless a quorum is present at the commencement of business. If a
quorum is not present within 15 minutes from the time initially fixed for
the meeting, it shall, if convened on the requisition of Noteholders, be
dissolved. In any other case it shall be adjourned until such date, not
less than 14 nor more than 42 days later, and time and place as the
chairman may decide. If a quorum is not present within 15 minutes from the
time fixed for a meeting so adjourned, the meeting shall be dissolved.
19 Two or more Noteholders or agents present in person shall be a quorum:
19.1 in the cases marked No minimum proportion in the table below, whatever
the proportion of the Notes which they represent
<PAGE>
19.2 in any other case, only if they represent the proportion of the Notes
shown by the table below. . Column 1 Column 2 Column 3 Purpose of meeting
Any meeting except one referred to in column 3 Meeting previously adjourned
though want of a quorum
- --------------------------------------------------------------------------------
Column 1 | Column 2 | Cloumn 3
================================================================================
| Any meeting except | Meeting previously
| one referred to in | adjourned though want
Purpose of meeting | column 3 | of a quorum
|-------------------------|----------------------------
| Required proportion | Required proportion
- -------------------------|-------------------------|----------------------------
To pass a special quorum | |
resolution | 75 per cent | 25 per cent
- -------------------------|-------------------------|----------------------------
To pass any other | |
Extraordinary Resolution | A clear majority | No minimum proportion
- -------------------------|-------------------------|----------------------------
Any other purpose | 10 per cent | No minimum proportion
- --------------------------------------------------------------------------------
20 The chairman may with the consent of (and shall if directed by) a
meeting adjourn the meeting from time to time and from place to place. Only
business which could have been transacted at the original meeting may be
transacted at a meeting adjourned in accordance with this paragraph or
paragraph 18.
21 At least 10 days notice of a meeting adjourned through want of a quorum
shall be given in the same manner as for an original meeting and that
notice shall state the quorum required at the adjourned meeting. No notice
need, however, otherwise be given of an adjourned meeting.
Voting
22 Each question submitted to a meeting shall be decided by a show of hands
unless a poll is (before, or on the declaration of the result of, the show
of hands) demanded by the chairman, the Issuer, the Guarantor or one or
more persons representing 2 per cent of the Notes.
23 Unless a poll is demanded a declaration by the chairman that a
resolution has or has not been passed shall be conclusive evidence of the
fact without proof of the number or proportion of the votes cast in favour
of or against it.
24 If a poll is demanded, it shall be taken in such manner and (subject as
provided below) either at once or after such adjournment as the chairman
directs. The result of the poll shall be deemed to be the resolution of the
meeting at which it was demanded as at the date it was taken. A demand for
a poll shall not prevent the meeting continuing for the transaction of
business other than the question on which it has been demanded.
25 A poll demanded on the election of a chairman or on a question of
adjournment shall be taken at once.
<PAGE>
26 On a show of hands every person who is present in person and who
produces a Note or a voting certificate or is a proxy has one vote. On a
poll every such person has one vote for each FF10,000 (or, after the
Redenomination Date and/or the Specified Date (each as defined in the
Conditions), the lowest denomination in Euro of the Notes or, in the
circumstances set out in Condition 7(a) the equivalent of such French Franc
amount in Euro, as determined by the Fiscal Agent in its absolute
discretion) so produced or represented by the voting certificate so
produced or for which he is a proxy or representative. Without prejudice to
the obligations of proxies, a person entitled to more than one vote need
not use them all or cast them all in the same way.
27 In case of equality of votes the chairman shall both on a show of hands
and on a poll have a casting vote in addition to any other votes which he
may have.
Effect and Publication of an Extraordinary Resolution
28 An Extraordinary Resolution shall be binding on all the Noteholders,
whether or not present at the meeting, and on all the Couponholders and
each of them shall be bound to give effect to it accordingly. The passing
of such a resolution shall be conclusive evidence that the circumstances
justify its being passed. The Issuer shall give notice of the passing of an
Extraordinary Resolution to Noteholders within 14 days but failure to do so
shall not invalidate the resolution.
Minutes
29 Minutes shall be made of all resolutions and proceedings at every
meeting and, if purporting to be signed by the chairman of that meeting or
of the next succeeding meeting, shall be conclusive evidence of the matters
in them. Until the contrary is proved every meeting for which minutes have
been so made and signed shall be deemed to have been duly convened and held
and all resolutions passed or proceedings transacted at it to have been
duly passed and transacted.
This Agreement was entered into on the date stated at the beginning.
<PAGE>
SCHEDULE 4
Form of Deed Poll (Substituted Issuer)
This Deed Poll is made on [*] by [ISSUER] (the Issuer), a company incorporated
in [*], [*] (the Substitute), a company incorporated in [*] and OLSTEN
CORPORATION (the Guarantor), a company incorporated in the State of Delaware.
It has been proposed that in respect of the FF800,000,000 6 per cent Guaranteed
Notes due 2008 (the Notes) of the Issuer and guaranteed by the Guarantor and in
relation to which a Fiscal Agency Agreement (the Fiscal Agency Agreement) was
entered into dated 6 May 2008 between, among others, the Issuer, the Guarantor
and Crdit Lyonnais Luxembourg S.A. there will be a substitution of the
Substitute for the Issuer as the issuer of the Notes. References herein to the
Notes include any Global Note representing the Notes and other expressions.
Expressions defined in the Notes have the same meaning in this Deed unless the
context requires otherwise.
This Deed witnesses as follows:
1 The Substitute agrees that, with effect from and including the first date
on which notice has been given by the Issuer pursuant to Condition 14 and
all the other requirements of such Condition have been met (the "Effective
Date"), it shall be deemed to be the Issuer for all purposes in respect of
the Notes and the Coupons relating to them, and accordingly it shall be
entitled to all the rights, and subject to all the liabilities, on the part
of the Issuer contained in them.
2 With effect from and including the Effective Date:
2.1 the Issuer is released from all its liabilities, in its capacity as
issuer of the Notes, contained in the Notes and the Coupons and
2.2 the Terms and Conditions of the Notes (as modified with respect to any
Notes represented by a Global Note by the provisions of the Global Note,
the Conditions) are amended as follows:
2.2.1 all references to [tax jurisdiction(s) which are no longer
relevant] in Condition 8 are replaced by references to [tax
jurisdiction(s) relevant as a result of the substitution].
3.1 The Guarantor unconditionally and irrevocably guarantees that, if for
any reason the Substitute does not pay any sum payable by it under the
Notes or the Coupons relating to them (whether or not attached to them) or
this Deed on the date specified for such payment (whether on the normal due
date, on acceleration or otherwise), the Guarantor will pay that sum to the
holder of the relevant Note or the relevant Coupon as the case may be (the
Holder) in French Francs (or, if required pursuant to the Conditions, Euro)
before close of business in Paris on that date. All payments in respect of
principal and interest by the Guarantor shall be made subject to Condition
7.
3.2 As between the Guarantor and the Holder but without affecting the
Substitutes obligations, the Guarantor will be liable under this Deed as if
it were the sole principal debtor and not merely a surety. Accordingly, it
will not be discharged, nor will its liability be affected, by anything
which would not discharge it or affect its liability if it were the sole
principal debtor (including (1) any time, indulgence, concession, waiver or
consent at any time given to the Substitute or any other person, (2) any
amendment or supplement to any of the Conditions or to this Deed or to any
<PAGE>
security or other guarantee or indemnity, (3) the making or absence of any
demand on the Substitute or any other person for payment, (4) the
enforcement or absence of enforcement of any Note or the Coupons relating
to it or this Deed or of any security or other guarantee or indemnity, (5)
the taking, existence or release of any security, guarantee or indemnity,
(6) the winding-up, dissolution, amalgamation, reconstruction or
reorganisation of the Substitute or any other person or (7) the illegality,
invalidity or unenforceability of or any defect in any provision of the
Notes or the Coupons or this Deed or any of the Substitutes obligations
under any of them).
3.3 The Guarantors obligations under this Deed are and will remain in full
force and effect by way of continuing security until no sum remains payable
under the Notes or the Coupons relating to them or this Deed. Furthermore,
those obligations of the Guarantor are additional to, and not instead of,
any security or other guarantee or indemnity at any time existing in favour
of any person, whether from the Guarantor or otherwise, and may be enforced
without first having recourse to the Substitute, any other person, any
security or any other deed or indemnity. The Guarantor irrevocably waives
all notices and demands whatsoever.
3.4 So long as any sum remains payable under the Notes or the Coupons
relating to them or this Deed no right of the Guarantor, by reason of the
performance of any of its obligations under this Deed, to be indemnified by
the Substitute or to take the benefit of or enforce any security or other
guarantee or indemnity shall be exercised or enforced.
3.5 The Guarantor shall on demand indemnify the relevant Holder against any
cost, loss, expense or liability sustained or incurred by it as a result of
it being required for any reason (including any bankruptcy, insolvency,
winding-up, dissolution, or similar law of any jurisdiction) to refund all
or part of any amount received or recovered by it in respect of any sum
payable by the Substitute under the Notes or the Coupons relating to them
or this Deed and shall in any event pay to it on demand the amount as
refunded by it.
3.6 As separate, independent and alternative stipulations, the Guarantor
unconditionally and irrevocably agrees: (1) that any sum which, although
expressed to be payable by the Substitute under the Notes or the Coupons
relating to them or this Deed, is for any reason (whether or not now
existing and whether or not now known or becoming known to the Substitute,
the Guarantor or any Noteholder or Couponholder) not recoverable from the
Guarantor on the basis of a guarantee shall nevertheless be recoverable
from it as if it were the sole principal debtor and shall be paid by it to
the relevant Holder on demand and (2) as a primary obligation to indemnify
each Holder against any loss suffered by it as a result of any sum
expressed to be payable by the Substitute under the Notes or the Coupons
relating to them or this Deed not being paid by the time, on the date and
otherwise in the manner specified therein or any payment obligation of the
Substitute under the Notes or the Coupons relating to them or this Deed
being or becoming void, voidable or unenforceable for any reason (whether
or not now existing and whether or not now known or becoming known to the
Substitute, the Guarantor or any Noteholder or Couponholder), the amount of
that loss being the amount expressed to be payable by the Substitute in
respect of the relevant sum.
4 Condition 3 (Guarantee and Status), Condition 4 (Negative Pledge),
Condition 6 (Redemption and Purchase), Condition 7 (Payments), Condition 8
(Taxation and Reporting Requirements), Condition 9 (Events of Default),
<PAGE>
Condition 13 (Meetings of Noteholders and Modification) and Condition 16
(Currency Indemnity) shall apply, with any necessary consequential
modifications, to the Guarantor and to its obligations under this Deed.
5 The Substitute agrees to indemnify each Noteholder and Couponholder
against (A) any tax, duty, assessment or governmental charge which is
imposed on such Noteholder or Couponholder by (or by any authority in or
of) [the jurisdiction of the country of residence of the Substitute for tax
purposes and, if different, of its incorporation] with respect to any Note
or Coupon and which would not have been so imposed had the substitution not
been made and (B) any tax, duty, assessment or governmental charge, and any
cost or expense, relating to the substitution.
6 The Substitute and the Guarantor agree that the benefit of the
undertakings and the covenants binding upon them contained in this Deed
shall be for the benefit of each and every Noteholder and Couponholder and
each Noteholder and Couponholder shall be entitled severally to enforce
such obligations against the Substitute and the Guarantor.
7 This Deed shall be deposited with and held to the exclusion of the
Substitute and the Guarantor by the Fiscal Agent at its specified office
for the time being under the Conditions and the Substitute and the
Guarantor hereby acknowledge the right of every Noteholder to production of
this Deed and, upon request and payment of the expenses incurred in
connection therewith, to the production of a copy hereof certified by the
Fiscal Agent to be a true and complete copy.
8 This Deed may only be amended in the same way as the other Conditions are
capable of amendment under Schedule 3 of the Fiscal Agency Agreement and
any such amendment of this Deed will constitute one of the proposals
specified in Condition 13(a) to which special quorum provisions apply.
9 This Deed shall be governed by and construed in accordance with English
law.
10 The courts of England are to have jurisdiction to settle any disputes
which may arise out of or in connection with this Deed and accordingly any
legal action or proceedings arising out of or in connection with this Deed
(Proceedings) may be brought in such courts. Each of the Substitute and the
Guarantor irrevocably submits to the jurisdiction of such courts and waives
any objection to Proceedings in such courts whether on the ground of venue
or on the ground that the Proceedings have been brought in an inconvenient
forum. This submission is made for the benefit of each of the Noteholders
and Couponholders and shall not limit the right of any of them to take
Proceedings in any other court of competent jurisdiction nor shall the
taking of Proceedings in one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction (whether concurrently or not).
11 Each of the Substitute and the Guarantor irrevocably appoints [*] of [*]
as its agent in England to receive service of process in any Proceedings in
England based on this Deed. If for any reason it does not have such an
agent in England, the Substitute or the Guarantor as the case may be will
promptly appoint a substitute process agent and notify the Noteholders of
such appointment. Nothing herein shall affect the right to serve process in
any other manner permitted by law.
<PAGE>
In witness whereof this Deed has been executed as a Deed Poll on the date stated
at the beginning.
[ISSUER]
By:
[The Substitute]
By:
OLSTEN CORPORATION
By:
OLSTEN INTERNATIONAL B.V.
By: Anthony J. PUGLISI
OLSTEN CORPORATION
By: Anthony J. PUGLISI
CREDIT LYONNAIS LUXEMBOURG S.A.
By: Philippe CHEE
CREDIT LYONNAIS
By: Philippe TERVER
For the purposes of Article I of the Protocol annexed to the Convention on
jurisdiction and the enforcement of judgments in civil and commercial matters
signed at Brussels on 27 September 1968 we hereby expressly and specifically
accept the jurisdiction of the courts of England.
CREDIT LYONNAIS LUXEMBOURG S.A.
By: Philippe CHEE
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Olsten
Corporation and Subsidiaries Consolidated Balance Sheets at June 28, 1998
(unaudited) and Olsten Corporation and Subsidiaries Consolidated Statements of
Income for the six months ended June 28, 1998 (unaudited) and is qualified in
its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JAN-03-1999
<PERIOD-END> JUN-28-1998
<CASH> 18,366
<SECURITIES> 0
<RECEIVABLES> 944,945
<ALLOWANCES> 26,142
<INVENTORY> 0
<CURRENT-ASSETS> 1,029,383
<PP&E> 347,314
<DEPRECIATION> 149,857
<TOTAL-ASSETS> 1,811,739
<CURRENT-LIABILITIES> 371,720
<BONDS> 0
0
0
<COMMON> 8,132
<OTHER-SE> 797,673
<TOTAL-LIABILITY-AND-EQUITY> 1,811,739
<SALES> 2,176,084
<TOTAL-REVENUES> 2,176,084
<CGS> 1,666,902
<TOTAL-COSTS> 1,666,902
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 15,236
<INCOME-PRETAX> (27,651)
<INCOME-TAX> (10,714)
<INCOME-CONTINUING> (20,663)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (20,663)
<EPS-PRIMARY> (.25)
<EPS-DILUTED> (.25)
</TABLE>
