<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 24, 1999
INTERIM SERVICES INC.
(Exact name of registrant as specified in its charter)
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Delaware 0-23198 36-3536544
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation or organization) File Number) Identification No.)
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2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
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(Address, including zip code, of principal executive office)
(954) 938-7600
Registrant's telephone number, including area code
NOT APPLICABLE
(Former name, former address and fiscal year, if changed since last report)
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ITEM 5. OTHER EVENTS.
On March 24, 1999, Interim Services Inc., a Delaware corporation
("Interim"), Interim Merger Corporation, a Delaware corporation and a
wholly-owned subsidiary of Interim ("Sub"), and Norrell Corporation, a Georgia
corporation ("Norrell"), entered into an Agreement and Plan of Merger (the
"Merger Agreement"). The Merger Agreement provides for the merger (the "Merger")
of Norrell with and into Sub. Pursuant to the terms of the Merger Agreement, the
shareholders of Norrell will receive 0.9 share of Interim's common stock, par
value $.01 per share ("Interim Common Stock"), in exchange for each share of
Norrell's common stock, no par value ("Norrell Common Stock"). The shareholders
of Norrell may elect to receive cash (referred to herein as a "Cash Election")
with respect to their shares of Norrell Common Stock (the shares relating to
such Cash Election are referred to herein as "Cash Election Shares") in lieu of
Interim Common Stock in the Merger in an amount per share equal to the greater
of (i) 0.9 times the average closing price of Interim Common Stock on the New
York Stock Exchange for the 20 consecutive full trading days ending on the close
of trading on the second trading day immediately preceding the effective date of
the Merger (the "Effective Date") or (ii) $16.00; provided, that if (a) the
number of Cash Election Shares would result in the sum of (i) the aggregate
amount of the cash payments to be made with respect to all Cash Elections plus
(ii) all payments made since March 24, 1996 by Norrell or its affiliates in
connection with extraordinary dividends or the purchase or redemption of Norrell
Common Stock (the sum of the amounts determined pursuant to clauses (a) (i) and
(ii) above is referred to herein as the "Deemed Cash Purchase Price") to exceed
49% (the "Percentage Maximum") of the sum of (x) the aggregate amount of the
Deemed Cash Purchase Price plus (y) the aggregate fair market value of the
shares of Interim Common Stock to be received in the Merger (with shares of
Interim Common Stock being valued for this purpose based upon the closing price
of Interim Common Stock on the New York Stock Exchange on the trading day
immediately preceding the Effective Date) or (b) the aggregate amount of the
cash payments to be made with respect to all Cash Elections would exceed $175
million (the "Maximum Cash Payment"); then the aggregate number of Cash Election
Shares shall be reduced on pro rata basis among all shareholders of Norrell
making Cash Elections to the highest number of Cash Election Shares that causes
neither the Percentage Maximum nor the Maximum Cash Payment to be exceeded.
Further, in the event that Cash Elections are made with respect to less than 10%
of the issued and outstanding shares of Norrell Common Stock, the principal
shareholder of Norrell has agreed to make Cash Elections with respect to such
number of his shares of Norrell Common Stock which would result in at least 10%
of the aggregate consideration to be paid to shareholders of Norrell in the
Merger to be made in cash. The terms of the Agreement and the amount of
consideration paid for the Merger were determined through arms-length
negotiations among the parties.
The closing of the Merger is subject to certain conditions including
approval of the Merger by the shareholders of Interim and Norrell and certain
regulatory approvals, including those required under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended.
Copies of (i) the press release issued by Interim and Norrell on March
25, 1999 announcing the Merger (ii) the Merger Agreement and (iii) the
Irrevocable Proxy and Merger Consideration Election Agreement dated March 24,
1999 are attached hereto as Exhibits 99.1, 2.1 and 99.2, respectively, and are
incorporated herein by reference.
2
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS.
(a)&(b) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED AND
PRO FORMA FINANCIAL INFORMATION.
Pursuant to the provisions of Item 7(a)(4) of Form 8-K, the
Registrant intends to file by amendment such required
financial statements and pro forma financial information as
soon as practical, but not later than 60 days after the date
that this Form 8-K is required to be filed.
(c) EXHIBITS.
2.1 Merger Agreement dated as of March 24, 1999, by and
among Interim Services Inc., Interim Merger
Corporation and Norrell Corporation.
99.1 Press Release dated March 25, 1999.
99.2 Irrevocable Proxy and Merger Consideration Election
Agreement dated March 24, 1999.
3
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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 hereunto duly authorized.
INTERIM SERVICES INC.
Date: March 30, 1999 By: /s/ Raymond Marcy
------------------------------------------
Raymond Marcy
Chairman, President and Chief
Executive Officer
4
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EXHIBIT INDEX
Exhibit Description
- --------------- ------------------------------------------------------------
2.1 Agreement and Plan of Merger dated as of March 24, 1999, by
and among Interim Services Inc., Interim Merger Corporation
and Norrell Corporation.
99.1 Press Release dated March 25, 1999.
99.2 Irrevocable Proxy and Merger Consideration Election
Agreement dated March 24, 1999
<PAGE> 1
EXHIBIT 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
INTERIM SERVICES INC.,
INTERIM MERGER CORPORATION
AND
NORRELL CORPORATION
DATED AS OF MARCH 24, 1999
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TABLE OF CONTENTS
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PARTIES.......................................................................................................1
PREAMBLE......................................................................................................1
ARTICLE 1 - TRANSACTIONS AND TERMS OF MERGER..................................................................1
1.1 Merger............................................................................................1
1.2 Time and Place of Closing.........................................................................1
1.3 Effective Time....................................................................................2
ARTICLE 2 - TERMS OF MERGER...................................................................................2
2.1 Charter...........................................................................................2
2.2 Bylaws............................................................................................2
2.3 Directors and Officers............................................................................2
ARTICLE 3 - MANNER OF CONVERTING SHARES.......................................................................3
3.1 Conversion of Shares..............................................................................3
3.2 Shares Held by Norrell or Interim.................................................................5
3.3 Fractional Shares.................................................................................5
3.4 Conversion of Stock Options.......................................................................5
3.5 Anti-Dilution Provisions..........................................................................6
3.6 Withholding.......................................................................................6
ARTICLE 4 - EXCHANGE OF SHARES................................................................................6
4.1 Exchange Procedures...............................................................................6
4.2 Rights of Former Norrell Stockholders.............................................................7
ARTICLE 5 - REPRESENTATIONS OF NORRELL........................................................................7
5.1 Organization, Standing, and Power.................................................................7
5.2 Authority of Norrell; No Breach By Agreement......................................................8
5.3 Capital Stock.....................................................................................8
5.4 Norrell Subsidiaries..............................................................................9
5.5 SEC Filings; Financial Statements.................................................................10
5.6 Absence of Undisclosed Liabilities................................................................10
5.7 Absence of Certain Changes or Events..............................................................10
5.8 Material Contracts................................................................................11
5.9 Contract Provisions...............................................................................11
5.10 Compliance with Laws..............................................................................11
5.11 Statements True and Correct.......................................................................11
5.12 Opinion of Financial Advisor......................................................................12
5.13 Board Recommendation..............................................................................12
ARTICLE 6 - REPRESENTATIONS OF INTERIM........................................................................12
6.1 Organization, Standing, and Power.................................................................12
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6.2 Authority; No Breach By Agreement.................................................................13
6.3 Capital Stock.....................................................................................13
6.4 Norrell Subsidiaries..............................................................................14
6.5 Statements True and Correct.......................................................................15
6.6 Authority of Sub..................................................................................15
6.7 Board Recommendation..............................................................................16
6.8 SEC Filings; Financial Statements.................................................................16
6.9 Compliance with Laws..............................................................................16
6.10 Absence of Undisclosed Liabilities................................................................17
6.11 Absence of Certain Changes or Events..............................................................17
6.12 Material Contracts................................................................................17
6.13 Opinion of Financial Advisor......................................................................17
ARTICLE 7 - CONDUCT OF BUSINESS PENDING CONSUMMATION..........................................................18
7.1 Affirmative Covenants of Norrell..................................................................18
7.2 Negative Covenants of Norrell.....................................................................18
7.3 Affirmative Covenants of Interim..................................................................20
7.4 Negative Covenants of Interim.....................................................................20
7.5 Adverse Changes in Condition......................................................................21
7.6 Reports...........................................................................................21
ARTICLE 8 - ADDITIONAL AGREEMENTS.............................................................................22
8.1 Applications; Antitrust Notification..............................................................22
8.2 Filings with State Offices........................................................................22
8.3 Public Health Council.............................................................................22
8.4 Agreement as to Efforts to Consummate.............................................................23
8.5 Confidentiality...................................................................................23
8.6 Press Releases....................................................................................24
8.7 No Solicitation by Norrell........................................................................24
8.8 Employee Benefits and Contracts...................................................................25
8.9 Indemnification...................................................................................26
8.10 Registration Statement; Proxy Statement...........................................................27
8.11 Norrell Shareholders' Meeting.....................................................................28
8.12 Interim Shareholders' Meeting.....................................................................28
8.13 Exchange Listing..................................................................................29
8.14 Access to Information.............................................................................29
8.15 Accounting and Tax Treatment......................................................................29
8.16 Interim's Accountant's Letters....................................................................29
8.17 Norrell's Accountant's Letters....................................................................29
8.18 Director Seat.....................................................................................30
8.19 Tax Opinions......................................................................................30
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS TO ...........................................................30
9.1 Conditions to Obligations of Each Party...........................................................30
9.2 Conditions to Obligations of Interim..............................................................31
9.3 Conditions to Obligations of Norrell..............................................................33
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ARTICLE 10 - TERMINATION.......................................................................................34
10.1 Termination.......................................................................................34
10.2 Effect of Termination.............................................................................35
10.3 Non-Survival of Representations and Covenants.....................................................36
ARTICLE 11 - MISCELLANEOUS.....................................................................................36
11.1 Definitions.......................................................................................36
11.2 Expenses..........................................................................................43
11.3 Brokers and Finders...............................................................................44
11.4 Entire Agreement..................................................................................44
11.5 Amendments........................................................................................44
11.6 Waivers...........................................................................................44
11.7 Assignment........................................................................................45
11.8 Notices...........................................................................................45
11.9 Governing Law.....................................................................................46
11.10 Counterparts......................................................................................46
11.11 Captions; Articles and Sections...................................................................46
11.12 Interpretation....................................................................................46
11.13 Enforcement of Agreement..........................................................................47
11.14 Severability......................................................................................47
SIGNATURES.....................................................................................................47
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AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of March 24, 1999, by and among NORRELL CORPORATION ("Norrell"),
a Georgia corporation; INTERIM MERGER CORPORATION ("Sub"), a Delaware
corporation; and INTERIM SERVICES INC. ("Interim"), a Delaware corporation.
PREAMBLE
--------
The respective Boards of Directors of Norrell, Interim and Sub are
of the opinion that the transactions described herein are in the best interests
of the parties to this Agreement and their respective shareholders. This
Agreement provides for the merger of Norrell with Interim pursuant to the merger
of Norrell with and into Sub. At the effective time of such merger, each
outstanding share of the capital stock of Norrell will be converted into the
right to receive the Merger Consideration, as set forth herein. As a result,
Norrell will continue to conduct its business and operations as a wholly owned
subsidiary of Interim. The transactions described in this Agreement are subject
to the approvals of the shareholders of each of Interim and Norrell, expiration
of the required waiting period under the HSR Act, and the satisfaction of
certain other conditions described in this Agreement.
Certain terms used in this Agreement are defined in Section 11.1
of this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties agree as follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
--------------------------------
1.1 MERGER. Subject to the terms and conditions of this Agreement,
at the Effective Time, Norrell will be merged with and into Sub in accordance
with the provisions of Section 252 of the DGCL, and in accordance with the
provisions of Section 14-2-1101 et. seq. of the GBCC (the "Merger"). Sub will be
the Surviving Corporation resulting from the Merger and will be a wholly owned
Subsidiary of Interim and will continue to be governed by the Laws of the State
of Delaware. The Merger will be consummated pursuant to the terms of this
Agreement, which has been approved and adopted by the respective Boards of
Directors of Norrell, Sub and Interim and by Interim, as the sole shareholder of
Sub.
1.2 TIME AND PLACE OF CLOSING. The closing of the transactions
contemplated hereby (the "Closing") will take place at 9:00 A.M. on the date
that the Effective Time occurs, or at such other time as the Parties, acting
through their authorized officers, may mutually agree, at the offices of Alston
& Bird LLP in Atlanta, Georgia or at such other location as may be mutually
agreed upon by the Parties.
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1.3 EFFECTIVE TIME. Subject to the terms and conditions hereof,
unless otherwise mutually agreed upon in writing by the authorized officers of
each Party, the Parties will use their reasonable efforts to cause the
Certificate of Merger to be filed with the Secretary of State of the State of
Delaware and the Articles of Merger to be filed with the Secretary of State of
the State of Georgia on the first business day following the last to occur of
(i) the effective date (including expiration of any applicable waiting period)
of the last required Consent of any Regulatory Authority having authority over
and approving or exempting the Merger, (ii) the date on which all conditions
required pursuant to Article 9 herein have been satisfied or waived, (iii) the
date on which the shareholders of Norrell approve this Agreement, (iv) the date
on which the shareholders of Interim approve this Agreement, and (v) the date on
which all other approvals required by the Articles of Incorporation and Bylaws
of Norrell and the Certificate of Incorporation and Bylaws of each of Interim
and Sub are obtained. The Merger and other transactions contemplated by this
Agreement will become effective on the later to occur of the date and at the
time (a) the Certificate of Merger reflecting the Merger is filed with the
Secretary of State of the State of Delaware, and (b) the Articles of Merger
reflecting the Merger are filed with the Secretary of State of the State of
Georgia (the "Effective Time").
ARTICLE 2
TERMS OF MERGER
---------------
2.1 CHARTER. At the Effective Time, the Certificate of
Incorporation of Sub shall be amended to change the name of Sub to Norrell
Corporation. From and after the Effective Time, the Certificate of Incorporation
of Sub, as so amended, will be the Certificate of Incorporation of the Surviving
Corporation until duly amended or repealed.
2.2 BYLAWS. The Bylaws of Sub in effect immediately prior to the
Effective Time will be the Bylaws of the Surviving Corporation until duly
amended or repealed.
2.3 DIRECTORS AND OFFICERS. The directors of Sub in office
immediately prior to the Effective Time, together with such additional persons
as may thereafter be elected, will serve as the directors of the Surviving
Corporation from and after the Effective Time in accordance with the Bylaws of
the Surviving Corporation. The officers of Norrell in office immediately prior
to the Effective Time, together with such additional persons as may thereafter
be elected, will serve as the officers of the Surviving Corporation from and
after the Effective Time in accordance with the Bylaws of the Surviving
Corporation.
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ARTICLE 3
MANNER OF CONVERTING SHARES
---------------------------
3.1 CONVERSION OF SHARES. Subject to the provisions of this
Article 3, at the Effective Time, by virtue of the Merger and without any action
on the part of Interim, Norrell, Sub or the shareholders of any of the
foregoing:
(a) Each share of capital stock of Interim issued and
outstanding immediately prior to the Effective Time will remain issued and
outstanding from and after the Effective Time.
(b) Each share of Sub Common Stock issued and outstanding
immediately prior to the Effective Time shall remain issued and outstanding from
and after the Effective Time
(c) Each share of Norrell Common Stock, excluding shares
held by any Norrell Entity or any Interim Entity, issued and outstanding
immediately prior to the Effective Time will cease to be outstanding and will be
converted into and exchanged for the right to receive 0.9 share of Interim
Common Stock (the "Merger Shares"), subject to Section 3.1(d) below.
(d) Notwithstanding Section 3.1(c) above, and subject to
Sections 3.1(e) and (f), each share of Norrell Common Stock, excluding shares
held by any Norrell Entity or Interim Entity, issued and outstanding immediately
prior to the Effective Time may, in lieu of the Merger Shares and at the
election of such holder in accordance with Section 3.1(e), be exchanged for the
right to receive a cash payment equal to the greater of (i) 0.9 times the Base
Period Trading Price or (ii) $16.00 (the "Cash Payment") with respect to all or
such lesser number of such holder's shares of Norrell Common Stock that is a
whole multiple of 100 shares (such an election is hereinafter referred to as a
"Cash Election" and the shares of Norrell Common Stock with respect to which a
Cash Election is made are hereinafter referred to as the "Cash Election
Shares").
(e) An election form (the "Election Form") and other
appropriate and customary transmittal materials (which shall specify that
delivery shall be effected, and risk of loss and title to the certificates
theretofore representing shares of Norrell Common Stock shall pass only upon
proper delivery of such certificates to the Exchange Agent and such other
matters as Interim shall reasonably require) in such form as Interim and Norrell
shall mutually agree shall be mailed at the same time as the Proxy is mailed to
the Norrell Shareholders or on such other date as Norrell and Interim shall
mutually agree ("Mailing Date") to each holder of record of Norrell Common Stock
as of five business days prior to the Mailing Date ("Election Form Record
Date").
Each Election Form shall permit the holder of Norrell Common Stock (or
the beneficial owner thereof through appropriate and customary documentation and
instructions) to elect to receive only the Cash Payment, in lieu of the Merger
Shares, with respect to Cash Election Shares, subject to reductions in the
number of Cash Election Shares as set forth in Section 3.1(f).
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Any Norrell Common Stock with respect to which the holder (or the
beneficial owner, as the case may be) shall not have submitted to the Exchange
Agent, an effective, properly completed Election Form on or before 5:00 p.m., on
the 20th day following the Mailing Date (or such other time and date as Interim
and Norrell may mutually agree) (the "Election Deadline") shall be exchanged for
the Merger Shares in accordance with Section 3.1(c).
Interim shall make available one or more Election Forms as may be
reasonably requested by all persons who become holders (or beneficial owners) of
Norrell Common Stock between the Election Form Record Date and close of business
on the business day prior to the Election Deadline, and Norrell shall provide to
the Exchange Agent all information reasonably necessary for it to perform as
specified herein.
Any such Cash Election shall have been properly made only if the Exchange
Agent shall have actually received a properly completed Election Form by the
Election Deadline. An Election Form shall be deemed properly completed only if
accompanied by one or more certificates (or customary affidavits and
indemnification regarding the loss or destruction of such certificates or the
guaranteed delivery of such certificates) representing all shares of Norrell
Common Stock covered by such Election Form, together with duly executed
transmittal materials included in the Election Form. Any Election Form may be
revoked or changed by the person submitting such Election Form at or prior to
the Election Deadline. In the event an Election Form is revoked prior to the
Election Deadline, the shares of Norrell Common Stock represented by such
Election Form shall be treated as if no Cash Election had been made with respect
thereto. Subject to the terms of this Agreement and of the Election Form, the
Exchange Agent shall have reasonable discretion to determine whether any
election, revocation or change has been properly or timely made and to disregard
immaterial defects in the Election Form, and any good faith decisions of the
Exchange Agent regarding such matters shall be binding and conclusive. Neither
Interim nor the Exchange Agent shall be under any obligation to notify any
person of any defect in an Election Form.
(f) Within five (5) calendar days after the Election Deadline,
the Exchange Agent shall determine the aggregate number of Cash Election Shares
as to which a Cash Election was timely and properly made. If: (a) the number of
Cash Election Shares would, but for the provisions of this Section 3.1(f),
result in the sum of (i) the aggregate amount of the Cash Payments plus (ii) all
payments made since March 24, 1996 by any Norrell Entity in connection with
extraordinary dividends or the purchase or redemption of Norrell Common Stock
(the sum of the amounts determined pursuant to clauses (a)(i) and (a)(ii) is
referred to herein in the aggregate as the "Deemed Cash Purchase Price"), to
exceed 49% (the "Percentage Maximum") of the sum of (x) the aggregate amount of
the Deemed Cash Purchase Price plus (y) the aggregate fair market value of the
Merger Shares; OR (b) the aggregate amount of the Cash Payments would, but for
the provisions of this Section 3.1(f), exceed $175 million (the "Maximum Cash
Payment"); then the aggregate number of Cash Election Shares shall be reduced to
the highest number of Cash Election Shares that causes neither the Percentage
Maximum nor the Maximum Cash Payment to be exceeded (the "Maximum Cash Election
Shares"), with each Cash Election being reduced to the number of Cash Election
Shares determined by multiplying (a) the number of such holder's Cash Election
Shares originally
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subject to such Cash Election by (b) a fraction, (i) the numerator of which is
the Maximum Cash Election Shares and (ii) the denominator of which is the
aggregate number of Cash Election Shares originally subject to all Cash
Elections. For purposes of this Section 3.1(f), the fair market value of a
Merger Share shall be equal to the closing price of a share of Interim Common
Stock on the New York Stock Exchange on the trading day immediately preceding
the day on which the Effective Time occurs. The number of shares of Norrell
Common Stock that remain subject to such Cash Election after the foregoing
reduction shall be deemed converted into and exchanged for the right to receive
the Cash Payment as provided in Section 3.1(d). The Cash Election as to any
shares of Norrell Common Stock that represent the amount by which any Cash
Election is reduced as a result of the application of this Section 3.1(f) shall
be deemed revoked, and such shares shall remain converted into and exchanged for
the right to receive the Merger Shares as provided in Section 3.1(c).
3.2 SHARES HELD BY NORRELL OR INTERIM. Each of the shares of
Norrell Common Stock held by any Norrell Entity or by any Interim Entity, other
than the shares of Common Stock of the Surviving Corporation into which shares
of Sub Common Stock are converted as provided in Section 3.1(b), will be
cancelled and retired at the Effective Time and no consideration will be issued
in exchange therefor.
3.3 FRACTIONAL SHARES. Notwithstanding any other provision of this
Agreement, each holder of shares of Norrell Common Stock exchanged pursuant to
the Merger who would otherwise have been entitled to receive a fraction of a
share of Interim Common Stock (after taking into account all certificates
delivered by such holder) shall receive, in lieu thereof, cash (without
interest) in an amount equal to such fractional part of a share of Interim
Common Stock multiplied by the Base Period Trading Price. No such holder will be
entitled to dividends, voting rights, or any other rights as a shareholder in
respect of any fractional share.
3.4 CONVERSION OF STOCK OPTIONS. At the Effective Time, each
option or other right to purchase shares of Norrell Common Stock pursuant to
stock options or stock appreciation rights ("Norrell Options") granted by
Norrell under the Norrell Stock Plans, which are outstanding at the Effective
Time, whether or not exercisable, will be converted into an option or right to
purchase 0.9 shares of Interim Common Stock for each share of Norrell Common
Stock subject to such option or right at the exercise or purchase price per
share equal to (i) the exercise price per share in effect under such option or
right immediately prior to the Effective Time, DIVIDED BY (ii) 0.9, and
otherwise on substantially the same terms and conditions, including the terms
under which such option or rights are exercisable, as in effect under such
options or right immediately prior to the Effective Time. If the terms under
which any such options or right are exercisable are based upon or measured by
performance or characteristics of Norrell or any Norrell Entity, then unless the
terms of such option or right provide for the acceleration of the exercisability
of such option or right upon the occurrence of the transaction provided for
herein, such terms of exercise shall be replaced by terms of measurement or
performance that shall, as nearly as possible, afford to the holder of such
option or right the same opportunity for the exercise of such option or right as
existed immediately prior to the Effective Time.
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3.5 ANTI-DILUTION PROVISIONS. In the event Interim changes the
number of shares of Interim Common Stock issued and outstanding prior to the
Effective Time as a result of a stock split, stock dividend, or similar
recapitalization with respect to such stock and the record date therefor (in the
case of a stock dividend) or the effective date thereof (in the case of a stock
split or similar recapitalization for which a record date is not established)
shall be prior to the Effective Time, the Exchange Ratio shall be
proportionately adjusted.
3.6 WITHHOLDING. Interim or the Exchange Agent shall be entitled
to deduct and withhold from the consideration otherwise payable pursuant to this
Agreement to any holder of shares of Norrell Common Stock such amounts as
Interim or the Exchange Agent is required to deduct and withhold with respect to
the making of such payment under the Code, or any provision of state, local or
foreign tax law. To the extent amounts are so withheld by Interim or the
Exchange Agent, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of the shares of Norrell Common
Stock in respect of which such deduction and withholding was made by Interim or
the Exchange Agent. Amounts withheld as herein permitted shall be paid timely to
appropriate taxing authorities.
ARTICLE 4
EXCHANGE OF SHARES
------------------
4.1 EXCHANGE PROCEDURES. Promptly after the Effective Time,
Interim and Norrell will cause the bank or trust company selected by Interim as
the exchange agent (the "Exchange Agent") to mail to each holder of record of a
certificate or certificates which represented shares of Norrell Common Stock
immediately prior to the Effective Time (the "Certificates") appropriate
transmittal materials and instructions (which will specify that delivery will be
effected, and risk of loss and title to such Certificates will pass, only upon
proper delivery of such Certificates to the Exchange Agent). The Certificate or
Certificates so delivered will be duly endorsed as the Exchange Agent may
require. In the event of a transfer of ownership of shares of Norrell Common
Stock represented by Certificates that are not registered in the transfer
records of Norrell, the Merger Consideration may be issued to a transferee if
the Certificates representing such shares are delivered to the Exchange Agent,
accompanied by all documents required to evidence such transfer and by evidence
satisfactory to the Exchange Agent that any applicable stock transfer taxes have
been paid. If any Certificate has been lost, stolen, mislaid or destroyed, upon
receipt of (i) an affidavit of that fact from the record holder of a Certificate
claiming such Certificate to be lost, mislaid, stolen or destroyed, (ii) such
bond, security or indemnity as Interim and the Exchange Agent may reasonably
require and (iii) any other documents necessary to evidence and effect the bona
fide exchange thereof, the Exchange Agent will issue to such holder the Merger
Consideration into which the shares represented by such lost, stolen, mislaid or
destroyed Certificate will have been converted. The Exchange Agent may establish
such other reasonable and customary rules and procedures in connection with its
duties as it may deem appropriate. After the Effective Time, each holder of
shares of Norrell Common Stock (other than shares to be canceled pursuant to
Section 3.2) issued and outstanding at the Effective Time will surrender the
Certificate or Certificates representing such shares to the Exchange Agent and
will promptly upon surrender thereof receive in exchange therefor the
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Merger Consideration. Interim will not be obligated to deliver the Merger
Consideration to which any former holder of Norrell Common Stock is entitled as
a result of the Merger until such holder surrenders such holder's Certificate or
Certificates for exchange as provided in this Section 4.1. Any other provision
of this Agreement notwithstanding, neither Interim, the Surviving Corporation
nor the Exchange Agent will be liable to a holder of Norrell Common Stock for
any amounts paid or property delivered in good faith to a public official
pursuant to any applicable abandoned property, escheat or similar Law. Approval
of this Agreement by the shareholders of Norrell will constitute ratification of
the appointment of the Exchange Agent.
4.2 RIGHTS OF FORMER NORRELL SHAREHOLDERS. At the Effective Time,
the stock transfer books of Norrell will be closed as to holders of Norrell
Common Stock immediately prior to the Effective Time and no transfer of Norrell
Common Stock by any such holder will thereafter be made or recognized. Until
surrendered for exchange in accordance with the provisions of Section 4.1, each
Certificate theretofore representing shares of Norrell Common Stock (other than
shares to be canceled pursuant to Section 3.2) will from and after the Effective
Time represent for all purposes only the right to receive the Merger
Consideration in exchange therefor, subject, however, to the Surviving
Corporation's obligation to pay (if not theretofore paid by Norrell) the
quarterly dividend in the amount of $0.04 per share of Norrell Common Stock,
which dividend was declared on March 2, 1999, and is payable April 1, 1999 to
holders of record of Norrell Common Stock on March 17, 1999 (the "Declared
Dividend").
ARTICLE 5
REPRESENTATIONS OF NORRELL
--------------------------
Norrell hereby represents to Interim as follows:
5.1 ORGANIZATION, STANDING, AND POWER. Norrell is a corporation
duly organized, validly existing, and in good standing under the Laws of the
State of Georgia, and has the corporate power and authority to carry on its
business as now conducted and to own, lease and operate its material Assets.
Norrell is duly qualified or licensed to transact business as a foreign
corporation in good standing in the States of the United States and foreign
jurisdictions where the character of its Assets or the nature or conduct of its
business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Norrell Material
Adverse Effect. The minute books and other organizational documents for Norrell
have been made available to Interim for its review and, except as disclosed in
Section 5.1 of the Norrell Disclosure Memorandum, are true and complete in all
material respects as in effect as of the date of this Agreement and accurately
reflect in all material respects all amendments to the organizational documents
and all proceedings of the Board of Directors and shareholders thereof.
5.2 AUTHORITY OF NORRELL; NO BREACH BY AGREEMENT.
(a) Except as disclosed in Section 5.2(a) of the Norrell
Disclosure Memorandum, Norrell has all requisite corporate power and authority,
and has taken all
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corporate action necessary, to execute, deliver, and perform its obligations
under this Agreement and to consummate the transactions contemplated hereby,
subject only to the approval of this Agreement and the transactions contemplated
hereby by the holders of a majority of the outstanding shares of Norrell Common
Stock, and to the receipt of any required approvals by any Regulatory Authority.
This Agreement represents a legal, valid, and binding obligation of Norrell,
enforceable against Norrell in accordance with its terms (except in all cases as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium, or similar Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding may
be brought).
(b) Except as disclosed in Section 5.2(b) of the Norrell
Disclosure Memorandum, neither the execution and delivery of this Agreement by
Norrell, nor the consummation by Norrell of the transactions contemplated
hereby, nor compliance by Norrell with any of the provisions hereof, will (i)
conflict with or result in a breach of any provision of Norrell's Articles of
Incorporation or Bylaws or the certificate or articles of incorporation or
bylaws of any Norrell Subsidiary or any resolution adopted by the board of
directors or the shareholders of any Norrell Entity, or (ii) constitute or
result in a Default under, or require any Consent pursuant to, or result in the
creation of any Lien on any Asset of any Norrell Entity under, any material
Contract or Permit of any Norrell Entity where such Default or Lien or the
absence of such Consent is likely to result in a Norrell Material Adverse
Effect, or (iii) subject to receipt of the requisite Consents referred to in
Sections 9.1(c) and 9.1(d), constitute or result in a Default under, or require
any Consent pursuant to, any Law or Order applicable to any Norrell Entity or
any of their respective Assets where such Default or the absence of such Consent
is likely to result in a Norrell Material Adverse Effect.
(c) Except as disclosed in Section 5.2(c) of the Norrell
Disclosure Memorandum, and other than Consents required from Regulatory
Authorities, no notice to, filing with, or Consent of, any public body or
authority is necessary for the consummation by Norrell of the Merger and the
other transactions contemplated in this Agreement.
5.3 CAPITAL STOCK.
(a) As of March 22, 1999, the authorized capital stock of
Norrell consists of (i) 50,000,000 shares of Norrell Common Stock, of which
28,096,745 shares are issued, 26,689,072 shares are outstanding and 1,407,673
shares are held as treasury shares, and (ii) 10,000,000 shares of preferred
stock, no par value per share, none of which are issued and outstanding. All of
the outstanding shares of capital stock of Norrell are duly and validly issued
and outstanding and are fully paid and nonassessable under the GBCC. None of the
outstanding shares of capital stock of Norrell has been issued in violation of
any preemptive rights of the current or past shareholders of Norrell.
(b) Except as disclosed in Section 5.3(b) of the Norrell
Disclosure Memorandum, there are no outstanding Equity Rights relating to the
capital stock of Norrell.
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<PAGE> 13
Section 5.3(b) of the Norrell Disclosure Memorandum shows the number of shares
of Norrell Common Stock reserved for future issuance pursuant to Equity Rights
outstanding as of the date of this Agreement that relate to the capital stock of
Norrell, the exercise prices and the plans under which the options were granted.
5.4 NORRELL SUBSIDIARIES. Norrell has disclosed in Section 5.4 of
the Norrell Disclosure Memorandum all of the Norrell Subsidiaries that are
corporations (identifying its jurisdiction of incorporation and percentage
ownership interest represented by such share ownership) and all of the Norrell
Subsidiaries that are general or limited partnerships, limited liability
companies, or other non-corporate entities (identifying the Law under which such
entity is organized and the nature of the ownership interest therein). Except as
disclosed in Section 5.4 of the Norrell Disclosure Memorandum, Norrell or one of
its wholly owned Subsidiaries owns all of the issued and outstanding shares of
capital stock (or other equity interests) of each Norrell Subsidiary. No capital
stock (or other equity interest) of any Norrell Subsidiary is or may become
required to be issued (other than to another Norrell Entity) by reason of any
Equity Rights, and there are no Contracts by which any Norrell Subsidiary is
bound to issue (other than to another Norrell Entity) additional shares of its
capital stock (or other equity interests) or Equity Rights or by which any
Norrell Entity is or may be bound to transfer any shares of the capital stock
(or other equity interests) of any Norrell Subsidiary (other than to another
Norrell Entity). There are no Contracts relating to the rights of any Norrell
Entity to vote or to dispose of any shares of the capital stock (or other equity
interests) of any Norrell Subsidiary. All of the shares of capital stock (or
other equity interests) of each Norrell Subsidiary held by a Norrell Entity are
fully paid and nonassessable under the applicable corporation Law of the
jurisdiction in which such Subsidiary is incorporated or organized and are owned
by the Norrell Entity free and clear of any Lien. Each such Subsidiary is duly
organized, validly existing, and (as to corporations) in good standing under the
Laws of the jurisdiction in which it is incorporated or organized, and has the
corporate power and authority necessary for it to own, lease, and operate its
Assets and to carry on its business as now conducted. Each Norrell Subsidiary is
duly qualified or licensed to transact business as a foreign corporation in good
standing in the States of the United States and foreign jurisdictions where the
character of its Assets or the nature or conduct of its business requires it to
be so qualified or licensed, except for such jurisdictions in which the failure
to be so qualified or licensed is not reasonably likely to have, individually or
in the aggregate, a Norrell Material Adverse Effect. The minute books and other
organizational documents for each Norrell Subsidiary have been made available to
Interim for its review and, except as disclosed in Section 5.4 of the Norrell
Disclosure Memorandum, are true and complete in all material respects as in
effect as of the date of this Agreement and accurately reflect in all material
respects all amendments to the organizational documents and all proceedings of
the Board of Directors and shareholders thereof.
5.5 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Norrell has timely filed and made available to Interim
all SEC Documents required to be filed by Norrell (the "Norrell SEC Reports").
The Norrell SEC Reports (i) at the time filed, complied in all material respects
with the applicable requirements of the Securities Laws and other applicable
Laws and (ii) did not, at the time they were filed (or, if amended or
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<PAGE> 14
superseded by a filing prior to the date of this Agreement, then on the date of
such filing) contain any untrue statement of a material fact or omit to state a
material fact required to be stated in such Norrell SEC Reports or necessary to
make the statements in such Norrell SEC Reports, in light of the circumstances
under which they were made, not misleading. No Norrell Subsidiary is required to
file any SEC Documents.
(b) Each of the Norrell Financial Statements (including, in
each case, any related notes) contained in the Norrell SEC Reports, including
any Norrell SEC Reports filed after the date of this Agreement until the
Effective Time, complied as to form in all material respects with the applicable
published rules and regulations of the SEC with respect thereto, was prepared in
accordance with GAAP applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes to such financial statements
or, in the case of unaudited interim statements, as permitted by Form 10-Q of
the SEC), and fairly presented in all material respects the consolidated
financial position of Norrell and its Subsidiaries as at the respective dates
and the consolidated results of operations and cash flows for the periods
indicated, except that the unaudited interim financial statements were or are
subject to normal and recurring year-end adjustments which were not or are not
expected to be material in amount or effect.
5.6 ABSENCE OF UNDISCLOSED LIABILITIES. No Norrell Entity has any
Liabilities that are reasonably likely to have, individually or in the
aggregate, a Norrell Material Adverse Effect, except Liabilities which are
accrued or reserved against in the consolidated balance sheet of Norrell as of
January 31, 1999, which balance sheet was disclosed in the Norrell SEC Reports
filed prior to the date hereof, or incurred since January 31, 1999 consistent
with the next sentence. No Norrell Entity has incurred or paid any Liability
since January 31, 1999, except for such Liabilities incurred or paid (i) in the
ordinary course of business consistent with past business practice and which are
not reasonably likely to have, individually or in the aggregate, a Norrell
Material Adverse Effect or (ii) in connection with the transactions contemplated
by this Agreement.
5.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in
Section 5.7 of the Norrell Disclosure Memorandum, since January 31, 1999 and
except as disclosed in the Norrell Financial Statements delivered prior to the
date of this Agreement, (i) there have been no events, changes, or occurrences
which have had, or are reasonably likely to have, individually or in the
aggregate, a Norrell Material Adverse Effect, and (ii) the Norrell Entities have
not taken any action, or failed to take any action, which action or failure
would represent or result in a material breach or violation of any of the
covenants and agreements of Norrell contained herein.
5.8 MATERIAL CONTRACTS. With respect to each Material Norrell
Contract, as defined herein, and except as disclosed in Section 5.8 of the
Norrell Disclosure Memorandum or except as is consistent with ordinary business
or past practices: (i) each Material Norrell Contract is in full force and
effect; (ii) no Norrell Entity is in Default thereunder; (iii) no Norrell Entity
has repudiated or waived any material provision of any such Material Norrell
Contract; and (iv) no other party to any such Material Norrell Contract is, to
the Knowledge of Norrell, in Default in any respect or has repudiated or waived
any material provision thereunder. As used herein, "Material Norrell Contract"
includes (a) any contract filed by Norrell with the SEC and (b) any
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<PAGE> 15
other contract to which Norrell, or any Norrell Entity, is a party and which
involves an amount in excess of $5,000,000.
5.9 CONTRACT PROVISIONS. Except as disclosed in Section 5.9 of the
Norrell Disclosure Memorandum, sinceNovember 1, 1998, Norrell has not entered
into a Contract that, as a result of the consummation of the transactions
contemplated hereby, either alone or in connection with the occurrence of an
additional event or events, would cause or result in, or give to any other party
to such Contract the right to cause or effect, either (i) the termination of
such Contract, (ii) the payment of any consideration by Norrell or the Surviving
Corporation, or (iii) the loss of any material right to Norrell or the Surviving
Corporation under the terms of such Contract.
5.10 COMPLIANCE WITH LAWS. Each Norrell Entity has in effect all
Permits necessary for it to own, lease or operate its material Assets and to
carry on its business as now conducted, except where the absence of which would
not have a Norrell Material Adverse Effect. Except as disclosed in Section 5.10
of the Norrell Disclosure Memorandum, and except for such Defaults as are not
reasonably likely to have, individually or in the aggregate, a Norrell Material
Adverse Effect, none of the Norrell Entities: (a) is in Default under any of the
provisions of its Articles of Incorporation or Bylaws (or other governing
instruments), or (b) is in Default under any Laws, Orders, or Permits applicable
to its business or employees conducting its business. Except as disclosed in
Section 5.10 of the Norrell Disclosure Memorandum, since January 31, 1999,
neither Norrell nor any Norrell Entity has received any notification or
communication from any agency or department of federal, state, or local
government or any Regulatory Authority or the staff thereof (i) asserting that
any Norrell Entity is not in compliance with any of the Laws or Orders which
such governmental authority or Regulatory Authority enforces, (ii) threatening
to revoke any Permits, or (iii) requiring any Norrell Entity to enter into or
consent to the issuance of a cease and desist order, formal agreement,
directive, commitment, or memorandum of understanding, or to adopt any Board
resolution or similar undertaking, other than such of the foregoing as is not
reasonably likely to have, individually or in the aggregate, a Norrell Material
Adverse Effect.
5.11 STATEMENTS TRUE AND CORRECT. No statement, certificate,
instrument or other writing furnished or to be furnished by or on behalf of any
Norrell Entity or any Affiliate thereof to or for the benefit of Interim
pursuant to this Agreement or any other document, agreement or instrument
referred to herein contains or will contain any untrue statement of material
fact or will omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. None of the information supplied or to be supplied by any Norrell
Entity or any Affiliate thereof for inclusion in the Registration Statement to
be filed with the SEC, will, when filed and, when the Registration Statement
becomes effective, be false or misleading with respect to any material fact, or
omit to state any material fact necessary to make the statements therein not
misleading. None of the information supplied or to be supplied by any Norrell
Entity or any Affiliate thereof for inclusion in the Proxy Statement to be
mailed to Norrell's shareholders in connection with the Norrell Shareholders'
Meeting and to be mailed to Interim's shareholders in connection with the
Interim Shareholders' Meeting, will, at the time such Proxy Statement is first
mailed to the respective
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<PAGE> 16
shareholders of Norrell and Interim, be false or misleading with respect to any
material fact, or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or, as to such Proxy Statement or any amendment thereof or
supplement thereto, at the time of each of Interim's and Norrell's Shareholders'
Meeting, be false or misleading with respect to any material fact, or omit to
state any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of any proxy for the respective
Shareholders' Meeting.
5.12 OPINION OF FINANCIAL ADVISOR. Norrell has received the
opinion of Goldman Sachs & Co., dated the date of this Agreement, to the effect
that the Exchange Ratio is fair, from a financial point of view, to Norrell's
shareholders.
5.13 BOARD RECOMMENDATION. The Board of Directors of Norrell, at a
meeting duly called and held, has by unanimous vote of those directors present
(who constituted all of the directors then in office) (i) approved the Merger
and declared it to be advisable, (ii) determined that this Agreement and the
transactions contemplated hereby are fair to and in the best interests of the
shareholders and (iii) resolved to recommend that the holders of the shares of
Norrell Common Stock adopt this Agreement.
ARTICLE 6
REPRESENTATIONS OF INTERIM
--------------------------
Interim hereby represents to Norrell as follows:
6.1 ORGANIZATION, STANDING, AND POWER. Interim is a corporation
duly organized, validly existing, and in good standing under the Laws of the
State of Delaware, and has the corporate power and authority to carry on its
business as now conducted and to own, lease and operate its material Assets.
Interim is duly qualified or licensed to transact business as a foreign
corporation in good standing in the States of the United States and foreign
jurisdictions where the character of its Assets or the nature or conduct of its
business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, an Interim Material
Adverse Effect. Except as disclosed in Section 6.1 of the Interim Disclosure
Memorandum, the minute books and other organizational documents of Interim have
been made available to Norrell for its review and are true and complete in all
material respects as in effect as of the date of this Agreement and accurately
reflect in all material respects all amendments to the organizational documents
and all proceedings of the Board of Directors and shareholders thereof.
6.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) Except as disclosed in Section 6.2(a) of the Interim
Disclosure Memorandum, Interim has all requisite corporate power and authority,
and has taken all corporate action necessary, to execute, deliver and perform
its obligations under this Agreement and to consummate the transactions
contemplated hereby, subject only to the approval of this
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<PAGE> 17
Agreement and the transactions contemplated hereby by the holders of a majority
of the outstanding shares of Interim Common Stock and to the receipt of any
required approvals by any Regulatory Authority. This Agreement represents a
legal, valid, and binding obligation of Interim, enforceable against Interim in
accordance with its terms (except in all cases as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, receivership,
conservatorship, moratorium, or similar Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding may be brought).
(b) Except as disclosed in Section 6.2(b) of the Interim
Disclosure Memorandum, neither the execution and delivery of this Agreement by
Interim, nor the consummation by Interim of the transactions contemplated
hereby, nor compliance by Interim with any of the provisions hereof, will (i)
conflict with or result in a breach of any provision of Interim's Certificate of
Incorporation or Bylaws, or (ii) constitute or result in a Default under, or
require any Consent pursuant to, or result in the creation of any Lien on any
Asset of any Interim Entity under, any material Contract or Permit of any
Interim Entity, or (iii) subject to receipt of the requisite Consents referred
to in Section 9.1(c) and 9.1(d), constitute or result in a Default under, or
require any Consent pursuant to, any Law or Order applicable to any Interim
Entity or any of their respective material Assets where such Default or the
absence of such Consent is likely to result in an Interim Material Adverse
Effect.
(c) Other than Consents required from Regulatory
Authorities, no notice to, filing with, or Consent of, any public body or
authority is necessary for the consummation by Interim of the Merger and the
other transactions contemplated in this Agreement.
6.3 CAPITAL STOCK. As of March 19, 1999, the authorized capital
stock of Interim consists of (i) 100,000,000 shares of Interim Common Stock, of
which 47,427,492 shares are issued, 47,268,292 shares are outstanding and
159,200 shares are held as treasury shares, and (ii) 2,500,000 shares of
preferred stock, par value $0.01 per share, none of which are issued and
outstanding. All of the outstanding shares of capital stock of Interim are, and
all of the shares of Interim Common Stock to be issued as part of the Merger
Consideration upon consummation of the Merger, when issued in accordance with
the terms of this Agreement, will be, duly and validly issued and outstanding
and are fully paid and nonassessable under the DGCL. None of the outstanding
shares of Interim Common Stock has been, and none of the shares of Interim
common Stock to be issued as part of the Merger Consideration upon consummation
of the Merger will be, issued in violation of any preemptive rights of the
current or past shareholders of Interim.
6.4 INTERIM SUBSIDIARIES. Interim has disclosed in Section 6.4 of
the Interim Disclosure Memorandum all of the Interim Subsidiaries that are
corporations (identifying its jurisdiction of incorporation and percentage
ownership interest represented by such share ownership) and all of the Interim
Subsidiaries that are general or limited partnerships, limited liability
companies, or other non-corporate entities (identifying the Law under which such
entity is organized and the amount and nature of the ownership interest
therein). Except as disclosed in
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<PAGE> 18
Section 6.4 of the Interim Disclosure Memorandum, Interim or one of its wholly
owned Subsidiaries owns all of the issued and outstanding shares of capital
stock (or other equity interests) of each Interim Subsidiary. Except as set
forth in Section 6.4 of the Interim Disclosure Memorandum, no capital stock (or
other equity interest) of any Interim Subsidiary is or may become required to be
issued (other than to another Interim Entity) by reason of any Equity Rights,
and there are no Contracts by which any Interim Subsidiary is bound to issue
(other than to another Interim Entity) additional shares of its capital stock
(or other equity interests) or Equity Rights or by which any Interim Entity is
or may be bound to transfer any shares of the capital stock (or other equity
interests) of any Interim Subsidiary (other than to another Interim Entity).
Except as disclosed in Section 6.4 of the Interim Disclosure Memorandum, there
are no Contracts relating to the rights of any Interim Entity to vote or to
dispose of any shares of the capital stock (or other equity interests) of any
Interim Subsidiary. Except as disclosed in Section 6.4 at the Interim Disclosure
Memorandum, all of the shares of capital stock (or other equity interests) of
each Interim Subsidiary held by an Interim Entity are fully paid and
nonassessable under the applicable corporation Law of the jurisdiction in which
such Subsidiary is incorporated or organized and are owned by the Interim Entity
free and clear of any Lien. Each such Subsidiary is duly organized, validly
existing, and (as to corporations) in good standing under the Laws of the
jurisdiction in which it is incorporated or organized, and has the corporate
power and authority necessary for it to own, lease, and operate its Assets and
to carry on its business as now conducted. Each Interim Subsidiary is duly
qualified or licensed to transact business as a foreign corporation in good
standing in the States of the United States and foreign jurisdictions where the
character of its Assets or the nature or conduct of its business requires it to
be so qualified or licensed, except for such jurisdictions in which the failure
to be so qualified or licensed is not reasonably likely to have, individually or
in the aggregate, an Interim Material Adverse Effect. Except as disclosed in
Section 6.4 of the Interim Disclosure Memorandum, the minute books and other
organizational documents for each Interim Subsidiary have been made available to
Norrell for its review, and are true and complete in all material respects as in
effect as of the date of this Agreement and accurately reflect in all material
respects all amendments to the organizational documents and all proceedings of
the Board of Directors and shareholders thereof.
6.5 STATEMENTS TRUE AND CORRECT. No statement, certificate,
instrument or other writing furnished or to be furnished by or on behalf of any
Interim Entity or any Affiliate thereof to or for the benefit of Norrell
pursuant to this Agreement or any other document, agreement or instrument
referred to herein contains or will contain any untrue statement of material
fact or will omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. None of the information supplied or to be supplied by any Interim
Entity or any Affiliate thereof for inclusion in the Registration Statement to
be filed with the SEC, will, when filed and when the Registration Statement
becomes effective, be false or misleading with respect to any material fact, or
omit to state any material fact necessary to make the statements therein not
misleading. None of the information supplied or to be supplied by any Interim
Entity or any Affiliate thereof for inclusion in the Proxy Statement to be
mailed to Norrell's shareholders in connection with the Norrell Shareholders'
Meeting and to be mailed to Interim's shareholders in connection with the
Interim Shareholder's Meeting, will, at the time such Proxy Statement is first
mailed to the respective shareholders of Norrell and Interim, be false or
misleading with respect to any material fact, or
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<PAGE> 19
omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or, as to
such Proxy Statement or any amendment thereof or supplement thereto, at the time
of each of Interim's and Norrell's Shareholders' Meeting, be false or misleading
with respect to any material fact, or omit to state any material fact necessary
to correct any statement in any earlier communication with respect to the
solicitation of any proxy for the respective Shareholders' Meeting.
6.6 AUTHORITY OF SUB. Sub is a corporation duly organized, validly
existing and in good standing under the Laws of the State of Delaware as a
wholly owned Subsidiary of Interim. The authorized capital stock of Sub consists
of 1,000 shares of Sub Common Stock, 100 of which are validly issued and
outstanding, fully paid and nonassessable and are owned by Interim free and
clear of any Lien, except as disclosed in Section 6.6 of the Interim Disclosure
Memorandum,. Sub has the corporate power and authority necessary to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated herein,
including the Merger, have been duly and validly authorized by all necessary
corporate action in respect thereof on the part of Sub. This Agreement
represents a legal, valid and binding obligation of Sub, enforceable against Sub
in accordance with its terms (except in all cases as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar Laws affecting the enforcement of creditors' rights generally and except
that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding may be brought). Interim, as the sole shareholder of Sub, has voted
the shares of Sub Common Stock in favor of adoption of this Agreement, as and to
the extent required by applicable Law.
6.7 BOARD RECOMMENDATION. The Board of Directors of Interim, at a
meeting duly called and held, has by unanimous vote of those directors present
(who constituted all of the directors then in office) approved the Merger and
declared it to be advisable. The Board of Directors of Sub, by unanimous written
consent action, has approved the Merger. Interim, as the sole shareholder Sub,
has (i) approved the Merger and (ii) resolved to recommend that the holders of
Interim Common Stock approve this Agreement and the transactions contemplated
hereby.
6.8 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Interim has timely filed and made available to Norrell
all SEC Documents required to be filed by Interim (the "Interim SEC Reports").
The Interim SEC Reports (i) at the time filed, complied in all material respects
with the applicable requirements of the Securities Laws and other applicable
Laws and (ii) did not, at the time they were filed (or, if amended or superseded
by a filing prior to the date of this Agreement, then on the date of such
filing) contain any untrue statement of a material fact or omit to state a
material fact required to be stated in such Interim SEC Reports or necessary to
make the statements in such Interim SEC Reports, in light of the circumstances
under which they were made, not misleading. No Interim Subsidiary is required to
file any SEC Documents.
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<PAGE> 20
(b) Each of the Interim Financial Statements (including, in
each case, any related notes) contained in the Interim SEC Reports, including
any Interim SEC Reports filed after the date of this Agreement until the
Effective Time, complied as to form in all material respects with the applicable
published rules and regulations of the SEC with respect thereto, was prepared in
accordance with GAAP applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes to such financial statements
or, in the case of unaudited interim statements, as permitted by Form 10-Q of
the SEC), and fairly presented in all material respects the consolidated
financial position of Interim and its Subsidiaries as at the respective dates
and the consolidated results of operations and cash flows for the periods
indicated, except that the unaudited interim financial statements were or are
subject to normal and recurring year-end adjustments which were not or are not
expected to be material in amount or effect.
6.9 COMPLIANCE WITH LAWS. Each Interim Entity has in effect all
Permits necessary for it to own, lease or operate its material Assets and to
carry on its business as now conducted, except where the absence of which would
not have an Interim Material Adverse Effect. Except as disclosed in Section 6.9
of the Interim Disclosure Memorandum, and except for such Defaults as are not
reasonably likely to have, individually or in the aggregate, an Interim Material
Adverse Effect, none of the Interim Entities: (a) is in Default under any of the
provisions of its Articles of Incorporation or Bylaws (or other governing
instruments), or (b) is in Default under any Laws, Orders, or Permits applicable
to its business or employees conducting its business. Except as disclosed in
Section 6.9 of the Interim Disclosure Memorandum, since December 25, 1998,
neither Interim nor any Interim Entity has received any notification or
communication from any agency or department of federal, state, or local
government or any Regulatory Authority or the staff thereof (i) asserting that
any Interim Entity is not in compliance with any of the Laws or Orders which
such governmental authority or Regulatory Authority enforces, (ii) threatening
to revoke any Permits, or (iii) requiring any Interim Entity to enter into or
consent to the issuance of a cease and desist order, formal agreement,
directive, commitment, or memorandum of understanding, or to adopt any Board
resolution or similar undertaking, other than such of the foregoing as is not
reasonably likely to have, individually or in the aggregate, an Interim Material
Adverse Effect.
6.10 ABSENCE OF UNDISCLOSED LIABILITIES. Except as disclosed in
Section 6.10 of the Interim Disclosure Memorandum, No Interim Entity has any
Liabilities that are reasonably likely to have, individually or in the
aggregate, an Interim Material Adverse Effect, except Liabilities which are
accrued or reserved against in the consolidated balance sheet of Interim as of
December 25, 1998, which balance sheet was disclosed in the Interim SEC Reports
filed prior to the date hereof, or incurred since December 25, 1998 consistent
with the next sentence. No Interim Entity has incurred or paid any Liability
since December 25, 1998, except for such Liabilities incurred or paid (i) in the
ordinary course of business consistent with past business practice and which are
not reasonably likely to have, individually or in the aggregate, an Interim
Material Adverse Effect or (ii) in connection with the transactions contemplated
by this Agreement.
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6.11 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 25,
1998, except as disclosed in the Interim Financial Statements delivered prior to
the date of this Agreement, (i) there have been no events, changes, or
occurrences which have had, or are reasonably likely to have, individually or in
the aggregate, an Interim Material Adverse Effect, and (ii) the Interim Entities
have not taken any action, or failed to take any action, which action or failure
would represent or result in a material breach or violation of any of the
covenants and agreements of Interim contained herein.
6.12 MATERIAL CONTRACTS. With respect to each Material Interim
Contract, as defined herein, and except as disclosed in Section 6.12 of the
Interim Disclosure Memorandum: (i) the Material Interim Contract is in full
force and effect; (ii) no Interim Entity is in Default thereunder; (iii) no
Interim Entity has repudiated or waived any material provision of any such
Material Interim Contract; and (iv) no other party to any such Material Interim
Contract is, to the Knowledge of Interim, in Default in any respect or has
repudiated or waived any material provision thereunder. As used herein,
"Material Interim Contract" includes (a) any contract filed by Interim with the
SEC and (b) any other contract to which Interim, or any Interim Entity, is a
party and which involves an amount is excess of $5,000,000.
6.13 OPINION OF FINANCIAL ADVISOR. Interim has received the
opinion of NationsBanc Montgomery Securities LLC, dated March 24, 1999, to the
effect that the Merger Consideration to be paid to Norrell's shareholders upon
the consummation of the Merger is fair, from a financial point of view, to
Interim.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
----------------------------------------
7.1 AFFIRMATIVE COVENANTS OF NORRELL. From the date of this
Agreement until the earlier of the Effective Time or the termination of this
Agreement, unless the prior written consent of Interim has been obtained, and
except as otherwise expressly contemplated herein, Norrell will and will cause
each of its Subsidiaries to (a) operate its business only in the usual, regular,
and ordinary course, consistent with past practices, (b) use commercially
reasonable efforts to preserve intact its business organization and Assets and
maintain its rights and franchises, and (c) take no action which would (i)
adversely affect the ability of any Party to obtain any Consents required for
the transactions contemplated hereby without imposition of a condition or
restriction of the type referred to in the last sentences of Section 9.1(c) or
9.1(d), or (ii) materially adversely affect the ability of any Party to perform
its covenants and agreements under this Agreement.
7.2 NEGATIVE COVENANTS OF NORRELL. From the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement,
unless the prior written consent of Interim has been obtained, and except as
otherwise expressly contemplated herein, Norrell covenants and agrees that it
will not do or agree or commit to do, or permit any of its Subsidiaries to do or
agree or commit to do, any of the following:
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(a) amend the Articles of Incorporation, Bylaws or other
governing instruments of any Norrell Entity, except for the Articles of
Correction of the Amended and Restated Articles of Incorporation of
Norrell, to be filed on March 25, 1999, or as soon as practicable
thereafter;
(b) incur any additional debt obligation or other obligation
for borrowed money, other than indebtedness of a Norrell Entity to
another Norrell Entity, borrowings made in the ordinary course of
business and consistent with past practices under the credit facilities
of Norrell as existing on the date of this Agreement, or except in the
ordinary course of the business of Norrell Entities consistent with past
practices, or impose, or suffer the imposition, on any Asset of any
Norrell Entity, of any Lien or permit any such Lien to exist;
(c) repurchase, redeem, or otherwise acquire or exchange
(other than exchanges in the ordinary course under employee benefit
plans), directly or indirectly, any shares, or any securities convertible
into any shares, of the capital stock of any Norrell Entity, or, after
the date hereof, declare or pay any dividend or make any other
distribution in respect of Norrell's capital stock, other than the
Declared Dividend;
(d) except for this Agreement, or pursuant to the exercise of
stock options outstanding as of the date hereof and pursuant to the terms
thereof in existence on the date hereof, or as disclosed in Section
7.2(d) of the Norrell Disclosure Memorandum, issue, sell, pledge,
encumber, authorize the issuance of, enter into any Contract to issue,
sell, pledge, encumber, or authorize the issuance of, or otherwise permit
to become outstanding, any additional shares of Norrell Common Stock or
any other capital stock of any Norrell Entity, or any stock appreciation
rights, or any option, warrant, or other Equity Right;
(e) adjust, split, dividend, combine, reclassify or
recapitalize any capital stock of any Norrell Entity or issue or
authorize the issuance of any other securities in respect of or in
substitution for shares of Norrell Common Stock, or sell, lease, mortgage
or otherwise dispose of or otherwise encumber (x) any shares of capital
stock of any Norrell Subsidiary (unless any such shares of stock are sold
or otherwise transferred to another Norrell Entity) or (y) any Asset
other than in the ordinary course of business consistent with past
practice;
(f) except for purchases of U.S. Treasury securities or U.S.
Government agency securities, which in either case have maturities of
three years or less, purchase any securities or, except for commitments
outstanding prior to the date hereof, make any investment, either by
purchase of stock or securities, contributions to capital, Asset
transfers, or purchase of any Assets, in any Person other than an
existing wholly owned Norrell Subsidiary, or otherwise acquire direct or
indirect control over any Person, other than in connection with (i)
foreclosures in the ordinary course of business, or (ii) the creation of
new wholly owned Subsidiaries organized to conduct or continue activities
otherwise permitted by this Agreement;
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(g) grant any increase in compensation or benefits to the
employees or officers of any Norrell Entity, except in accordance with
past practice or as required by Law; pay any severance or termination pay
or any bonus other than pursuant to written policies or written Contracts
in effect on the date of this Agreement and disclosed in Section 7.2(g)
of the Norrell Disclosure Memorandum; enter into or amend any severance
agreements or change in control agreements with officers or employees of
any Norrell Entity; or grant any increase in fees or other increases in
compensation or other benefits to directors of any Norrell Entity; or
voluntarily accelerate the vesting of any stock options or other stock
based compensation or employee benefits or other Equity Rights;
(h) except for Contracts entered into in the ordinary course
of business consistent with past practices, enter into or amend any
employment Contract between any Norrell Entity and any Person (unless
such amendment is required by Law) that the Norrell Entity does not have
the unconditional right to terminate upon not more than thirty (30) days
written notice without Liability (other than Liability for services
already rendered or for severances permitted by Section 7.2(g) herein),
at any time on or after the Effective Time;
(i) adopt any new employee benefit plan of any Norrell Entity
or terminate or withdraw from, or make any material change in or to, any
existing employee benefit plans of any Norrell Entity other than any such
change that is required by Law or that, in the opinion of counsel, is
necessary or advisable to maintain the tax qualified status of any such
plan, or make any distributions from such employee benefit plans, except
as required by Law, the terms of such plans or consistent with past
practice;
(j) make any significant change in any tax or accounting
methods or systems of internal accounting controls, except as may be
appropriate to conform to changes in tax Laws or regulatory accounting
requirements or GAAP;
(k) commence any Litigation or settle any Litigation involving
any Liability of any Norrell Entity for money damages exceeding $250,000
or material restrictions upon the operations of any Norrell Entity;
(l) except as disclosed in Section 7.2(l) of the Norrell
Disclosure Memorandum, enter into, modify, amend or terminate any
material Contract or waive, release, compromise or assign any material
rights or claims, which action would result in a Norrell Material Adverse
Effect; or
(m) elect or appoint any new officer or director of any
Norrell Entity other than in the ordinary course of business.
7.3 AFFIRMATIVE COVENANTS OF INTERIM. From the date of this
Agreement until the earlier of the Effective Time or the termination of this
Agreement, unless the prior written consent of Norrell has been obtained, and
except as otherwise expressly contemplated herein, Interim covenants and agrees
that it will take no action which would (i) materially adversely affect the
ability of any Party to obtain any Consents required for the transactions
contemplated
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hereby without imposition of a condition or restriction of the type referred to
in the last sentences of Section 9.1(c) or 9.1(d), or (ii) materially adversely
affect the ability of any Party to perform its covenants and agreements under
this Agreement. Interim further covenants and agrees that it will not, without
the prior written consent of Norrell, amend the Certificate of Incorporation or
Bylaws of Interim, in each case, in any manner adverse to the holders of Norrell
Common Stock as compared to the rights of the holders of Interim Common Stock
generally as of the date of this Agreement.
7.4 NEGATIVE COVENANTS OF INTERIM. From the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement,
unless the prior written consent of Norrell has been obtained, and except as
otherwise expressly contemplated herein, Interim covenants and agrees that it
shall, and shall cause the Interim Entities to, carry on their respective
businesses in the usual, regular and ordinary course in substantially the same
manner as heretofore conducted, except where the failure to so act would not
materially adversely affect Interim's ability to perform its obligations
hereunder, and that Interim will not do or commit to do, or permit any of its
Subsidiaries to do or commit to do, any of the following:
(a) amend the Certificate of Incorporation, Bylaws or other
governing instruments of Interim so as to create any difference between
the rights, preferences and benefits of the Interim Common Stock and the
rights, preferences and benefits of that class of securities of Interim
having unlimited voting rights and the right to receive the net assets of
Interim upon dissolution;
(b) declare or pay any dividend or make any other distribution
in respect of Interim's capital stock, other than an issuance of rights
under the Rights Agreement between Interim and Boatmen's Trust Company
dated March 17, 1994, as amended through the date hereof, and as may be
amended and dividends payable solely in Interim Common Stock; or
(c) enter into, modify, amend or terminate any material
Contract or waive, release, compromise or assign any material rights or
claims, which action would result in an Interim Material Adverse Effect;
or
(d) cause or permit the shares of Interim Common Stock to not
be listed for trading on the NYSE.
Notwithstanding anything herein to the contrary, nothing contained in this
Agreement shall prohibit Interim from entering into acquisition transactions and
consummating such transactions or engaging in debt and/or equity transactions,
on an arm's length basis, provided, however, that prior to the Effective Time,
without the prior written consent of Norrell, Interim shall not consummate or
enter into any of the foregoing if such transaction would materially and
adversely affect Interim's ability to consummate the transactions contemplated
by this Agreement.
7.5 ADVERSE CHANGES IN CONDITION. Norrell agrees to give written
notice promptly to Interim upon becoming aware of the occurrence or impending
occurrence of any event or
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circumstance relating to it or any of its Subsidiaries which (i) is reasonably
likely to have, individually or in the aggregate, a Norrell Material Adverse
Effect, or (ii) would cause or constitute a material breach of any of its
representations, warranties, or covenants contained herein, and to use its
reasonable efforts to prevent or promptly to remedy the same. Interim agrees to
give written notice promptly to Norrell upon becoming aware of the occurrence or
impending occurrence of any event or circumstance relating to it or any of its
Subsidiaries which (i) is reasonably likely to have, individually or in the
aggregate, an Interim Material Adverse Effect, or (ii) would cause or constitute
a material breach of any of its representations, warranties, or covenants
contained herein, and to use its reasonable efforts to prevent or promptly to
remedy the same. The giving of notice pursuant to this Section 7.5 by either
party shall not be deemed a waiver by the receiving Party of any representation,
warranty or covenant contained herein.
7.6 REPORTS. Each Party and its Subsidiaries will file all reports
required to be filed by it with Regulatory Authorities between the date of this
Agreement and the Effective Time and will deliver to the other Party copies of
all such reports promptly after the same are filed. If financial statements are
contained in any such reports filed with the SEC, such financial statements will
fairly present the consolidated financial position of the entity filing such
statements as of the dates indicated and the consolidated results of operations,
changes in shareholders' equity, and cash flows for the periods then ended in
accordance with GAAP (subject in the case of interim financial statements to
normal recurring year-end adjustments that are not material). As of their
respective dates, such reports filed with the SEC will comply in all material
respects with the Securities Laws and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Any financial statements contained in any
other reports to another Regulatory Authority will be prepared in accordance
with Laws applicable to such reports.
ARTICLE 8
ADDITIONAL AGREEMENTS
---------------------
8.1 APPLICATIONS; ANTITRUST NOTIFICATION. Interim and Norrell will
promptly prepare and file applications with all Regulatory Authorities having
jurisdiction over the transactions contemplated by this Agreement seeking the
requisite Consents necessary to consummate the transactions contemplated by this
Agreement. To the extent required by the HSR Act, each of the Parties will
within fourteen (14) business days of the date hereof file with the United
States Federal Trade Commission and the United States Department of Justice the
notification and report form required for the transactions contemplated hereby
and any supplemental or additional information which may reasonably be requested
in connection therewith pursuant to the HSR Act and will comply in all material
respects with the requirements of the HSR Act. The Parties will deliver to each
other copies of all filings, correspondence and orders to and from all
Regulatory Authorities in connection with the transactions contemplated hereby.
Without limiting the foregoing, in the event that either the Federal Trade
Commission or the Antitrust Division of the United States Department of Justice
should issue a request for
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Additional Information or Documentary Material under 17 C.F.R. Section 803.20
(a "Second Request"), then Norrell and Interim each agree to use their
reasonable best efforts to respond fully to such Second Request as soon as
reasonably practical, but in no event longer than twenty (20) days after its
receipt and will promptly make any further filings or information submissions
and make any employee available for interview or testimony pursuant to the
foregoing (both before and after any Second Request) that may be necessary,
proper or advisable.
8.2 FILINGS WITH STATE OFFICES. Upon the terms and subject to the
conditions of this Agreement, Norrell will execute and file the Articles of
Merger with the Secretary of State of the State of Georgia and Sub will execute
and file the Certificate of Merger with the Secretary of State of the State of
Delaware in connection with the Closing.
8.3 PUBLIC HEALTH COUNCIL. Without limiting Sections 8.1 or 8.2
above, Interim will take all necessary actions to promptly prepare and file a
timely application, in complete and proper form, with the New York Public Health
Council ("PHC") for approval of the transactions contemplated by this Agreement.
Interim shall further take all actions necessary to further said application,
including, without limitation, promptly and fully responding to all
documentation requests by the PHC, and complying with all other requests from
the PHC in connection with such application
8.4 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms
and conditions of this Agreement, each Party agrees to use its reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper, or advisable under applicable Laws to
consummate and make effective, as soon as reasonably practicable after the date
of this Agreement, the transactions contemplated by this Agreement, including
using its reasonable efforts to lift or rescind any Order adversely affecting
its ability to consummate the transactions contemplated herein and to cause to
be satisfied the conditions referred to in Article 9; provided, that nothing
herein will preclude either Party from exercising its rights under this
Agreement. Each Party will use, and will cause each of its Subsidiaries to use,
its reasonable efforts to obtain all Consents necessary or desirable for the
consummation of the transactions contemplated by this Agreement.
8.5 CONFIDENTIALITY.
(a) Each Party will, and will cause its advisers and agents
to, maintain the confidentiality of all confidential information furnished to it
by the other Party concerning its and its Subsidiaries' businesses, operations,
and financial positions and will not use such information for any purpose except
in furtherance of the transactions contemplated by this Agreement. If this
Agreement is terminated prior to the Effective Time, each Party will promptly
return or certify the destruction of all documents and copies thereof, and all
work papers containing confidential information received from the other Party.
(b) Each Party agrees to give the other Party notice as soon
as practicable after any determination by it of any fact or occurrence relating
to the other Party which it has discovered through the course of its
investigation and which represents, or is reasonably likely to
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represent, either a material breach of any representation, warranty, covenant or
agreement of the other Party or which has had or is reasonably likely to have a
Norrell Material Adverse Effect or a Interim Material Adverse Effect, as
applicable.
This Section 8.5 shall not apply to confidential information as to which:
(i) written consent is obtained from the other Party
permitting disclosure or use of the specific confidential information for the
purpose(s) requested;
(ii) the specific confidential information is or generally
becomes available to the public other than as a result of disclosure by the
disclosing Partyor, the availability of any such confidential information under
the freedom of information laws of any state in the United States or utilization
of any such confidential information in response to a request for proposal,
shall, in either event, be deemed to be generally available to the public;
(iii) the disclosing Party was in the possession of the
disclosing Party prior to the commencement of negotiations leading to this
Agreement;
(iv) the specific confidential information is hereafter
disclosed to the disclosing Party by a third party having no obligation of
confidentiality with regard to this information, to the knowledge of the
disclosing party; or
(v) the specific confidential information is independently
generated through the disclosing Party's own research without any material use
of the disclosure by the other Party.
If this Agreement is terminated, each Party shall immediately return to
the other any and all confidential information which was furnished to it
hereunder and all materials prepared by each Party in connection with the use of
such confidential information, shall be destroyed, without retaining any
copy(ies) thereof, and shall so certify in a letter delivered to the other
Party.
8.6 PRESS RELEASES. Prior to the Effective Time, Norrell and
Interim will consult with each other as to the form and substance of any press
release or other public disclosure materially related to this Agreement or any
other transaction contemplated hereby, and neither party will issue any such
press release or make any other public disclosure without the consent of the
other party, which consent will not be unreasonably withheld; provided, that
nothing in this Section 8.6 will be deemed to prohibit any Party from making any
disclosure which its counsel deems necessary or advisable to satisfy such
Party's disclosure obligations imposed by Law or any Regulatory Authority.
8.7 NO SOLICITATION BY NORRELL.
(a) For purposes of this Agreement, "Acquisition
Proposal" means any inquiry or proposal (as such proposal may be amended,
modified or supplemented from time to time) with respect to a merger,
consolidation, share exchange or similar transaction involving
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Norrell or any Norrell Entity, or any purchase of all or any significant portion
of the assets of Norrell or any Norrell Entity, or any equity interest in
Norrell or any Norrell Entity, other than the transactions contemplated hereby
or any other similar transaction with Interim or any of its Affiliates. For
purposes of this Agreement, "Superior Proposal" means any proposal (i) made by a
third party to acquire, directly or indirectly, including pursuant to a tender
offer, exchange offer, merger, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction, for
consideration consisting of cash and/or securities, more than 50% of the
combined voting power of the shares of Norrell Common Stock then outstanding or
all or substantially all the assets of Norrell, (ii) which the Board of
Directors of Norrell determines in its good faith judgment (after consultation
with its financial advisor) that such proposal, if accepted, is reasonably
likely to be consummated, taking into account all legal, financial and
regulatory aspects of the proposal and the Person making the proposal and (iii)
which would, if consummated, result in a more favorable transaction than the
transaction contemplated by this Agreement, taking into account, to the extent
relevant, the long-term prospects and interests of Norrell and its shareholders.
(b) Except as permitted in Section 8.7(c) hereof,
Norrell will not, and will not authorize or permit any of its officers,
directors or employees or any investment banker, financial advisor, attorney,
accountant or other representative retained by it to, directly or indirectly,
(i) solicit, initiate or encourage (including by way of furnishing non-public
information), or take any other action to facilitate, any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to lead
to, an Acquisition Proposal or (ii) participate in any discussions or
negotiations regarding an Acquisition Proposal. Notwithstanding the
aforementioned, in the event any of Norrell's executive officers or directors
receive an Acquisition Proposal, Norrell shall promptly notify Interim of the
relevant terms of such Acquisition Proposal, and provide Interim a copy of any
written Acquisition Proposal.
(c) If, at any time, the Board of Directors of
Norrell determines in good faith, after consultation with and upon the advice of
outside counsel, that failure to take the actions described in Section 8.7(b)
hereof would be reasonably likely to constitute a breach of its fiduciary duties
to Norrell's shareholders under applicable law, then Norrell, in response to an
Acquisition Proposal that (i) was unsolicited or that resulted from solicitation
undertaken by Norrell prior to the date hereof or that did not otherwise result
from a breach of this Section 8.7 and (ii) is reasonably likely to lead to a
Superior Proposal, may (i) furnish non-public information with respect to
Norrell to the person who made such Acquisition Proposal pursuant to a customary
confidentiality agreement and (ii) participate in negotiations regarding such
Acquisition Proposal.
(d) Unless, the Board of Directors of Norrell has
determined in good faith, after consultation with and upon the advice of outside
counsel, that failure to do so would be reasonably likely to constitute a breach
of its fiduciary duties to Norrell's shareholders under applicable law, the
Board of Directors of Norrell will not (i) withdraw or modify, or propose to
withdraw or modify, in a manner adverse to Interim, its approval or
recommendation of this Agreement or the Merger unless there is a Superior
Proposal outstanding, (ii) approve or recommend, or propose to approve or
recommend, an Acquisition Proposal that is not a Superior
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<PAGE> 29
Proposal or (iii) cause Norrell to enter into any letter of intent, agreement in
principle, acquisition agreement or other agreement with respect to an
Acquisition Proposal that is not a Superior Proposal.
(e) Nothing contained in this Section 8.7 will
prohibit Norrell from at any time taking and disclosing to its shareholders a
position contemplated by Rule 14e-2(a) promulgated under the 1934 Act; PROVIDED,
HOWEVER, that neither Norrell nor its Board of Directors will, except as
permitted by Section 8.7(d) hereof, propose to approve or recommend, an
Acquisition Proposal.
(f) Any determination as to whether an Acquisition
Proposal constitutes or is likely to result in a Superior Proposal shall be made
by the Special Committee of the Board of Directors of Norrell appointed on or
about December 29, 1999.
8.8 EMPLOYEE BENEFITS AND CONTRACTS. Following the Effective Time,
Interim will provide employee benefits under employee benefit and welfare plans
to officers and employees of the Norrell Entities who become employees of the
Surviving Corporation or its Subsidiaries on terms and conditions which, when
taken as a whole with any benefits being provided by Norrell, are substantially
similar to those currently provided by the Interim Entities to their similarly
situated officers and employees. For purposes of participation, vesting and
benefit accrual under Interim's employee benefit plans, the service of the
employees of the Norrell Entities prior to the Effective Time will be treated as
service with an Interim Entity participating in such employee benefit plans. All
co-payments and deductibles paid by any participant during this contract year
with respect to any health or other employee benefit plans will be credited for
similar purposes under the comparable Interim benefit plan. Interim also will
cause the Surviving Corporation and its Subsidiaries to honor in accordance with
their terms all employment, severance, consulting and other compensation
Contracts disclosed in Section 8.8 of the Norrell Disclosure Memorandum between
any Norrell Entity and any current or former director, officer, or employee
thereof, and all provisions for vested benefits or other vested amounts earned
or accrued through the Effective Time under any employee benefit plans
maintained by Norrell.
8.9 INDEMNIFICATION.
(a) The Surviving Corporation will, to the fullest extent
permitted by applicable law, indemnify, defend and hold harmless each person who
is now, or has been at any time prior to the date hereof, or who becomes prior
to the Effective Time, an officer or director of Norrell or any of its
Subsidiaries (each an "Indemnified Party" and collectively, the "Indemnified
Parties") against all Indemnified Liabilities arising out of actions or
omissions occurring prior to the Effective Time (and whether asserted or claimed
prior to, at or after the Effective Time) that are, in whole or in part, based
on or arise out of the fact that such person is or was a director or officer of
Norrell or one of its Subsidiaries, or is or was serving at the request of
Norrell or one of its Subsidiaries as an officer or director of another entity;
PROVIDED, HOWEVER, the Surviving Corporation shall not be obligated to indemnify
any such person under this Section 8.9(a) to a greater extent than such person
is entitled to be indemnified under the Articles of
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Incorporation or Bylaws of Norrell or under any indemnification agreement in
effect between such person and Norrell at the Effective Time. The Surviving
Corporation will pay the reasonable fees and expenses of counsel selected by the
Indemnified Parties, which counsel will be reasonably satisfactory to Interim
and the Surviving Corporation, promptly after statements therefor are received,
and otherwise advance to such Indemnified Party upon request reimbursement of
documented expenses reasonably incurred, in either case to the extent not
prohibited by the GBCC, and any determination required to be made with respect
to whether an Indemnified Party's conduct complies with the standards set forth
under the GBCC or the Articles of Incorporation or Bylaws of Norrell or any
indemnification agreement between such person and Norrell will be made by
independent counsel mutually acceptable to Interim and the Indemnified Party;
PROVIDED, HOWEVER, that the Surviving Corporation will not be liable for any
settlement effected without its written consent (which consent will not be
unreasonably withheld), and PROVIDED, FURTHER that this indemnity will be
secondary to any existing insurance policies providing such indemnity. The
Indemnified Parties as a group may retain only one law firm with respect to each
related matter except to the extent there is, in the opinion of counsel to an
Indemnified Party, under applicable standards of professional conduct, a
conflict on any significant issue between positions of such Indemnified Party
and any other Indemnified Party or Indemnified Parties.
(b) The Surviving Corporation agrees to indemnify, defend and hold
harmless each person who is a director of Norrell against all Indemnified
Liabilities, including the documented expenses reasonably incurred by such
person in connection with any pending, threatened or contemplated claim, action,
suit or proceeding, whether civil, criminal, administrative or investigative, to
which the person is, or is threatened to be made, a party based upon, arising
out of or pertaining to the approval of this Agreement and the transactions
contemplated hereby.
(c) Interim agrees to guarantee unconditionally the performance of
the Surviving Corporation's obligations pursuant to Sections 8.9(a) and 8.9(b).
(d) For a period of five (5) years after the Effective Time, the
Surviving Corporation will cause to be maintained in effect policies of
directors and officers' liability insurance maintained by Norrell for the
benefit of those persons who are currently covered by such policies on terms not
materially less favorable than the terms of such current insurance coverage;
PROVIDED, HOWEVER, that the Surviving Corporation will not be required to expend
in any year an amount in excess of 125% of the annual aggregate premiums
currently paid by Norrell for such insurance; and PROVIDED, FURTHER, that if the
annual premiums of such insurance coverage exceed such amount, the Surviving
Corporation will be obligated to obtain a policy with the best coverage
available, in the reasonable judgment of the Board of Directors of Interim, for
a cost not exceeding such amount.
(e) If Interim, the Surviving Corporation or any of its successors
or assigns (i) consolidates with or merges into any other person or entity and
will not be the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers all of substantially all of its
properties and assets to any person or entity, then and in either such case,
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proper provisions will be made so that the successors and assigns of Interim
will assume the obligations set forth in this Section 8.9.
(f) To the fullest extent permitted by law, from and after the
Effective Time, all rights to indemnification as of the date hereof in favor of
the employees, agents, directors and officers of Norrell and its Subsidiaries
with respect to their activities as such prior to the Effective Time, as
provided in their respective Articles of Incorporation and Bylaws in effect on
the date thereof, or otherwise in effect on the date hereof, will survive the
Merger and will continue in full force and effect for a period of not less than
five (5) years from the Effective Time.
(g) The provisions of this Section 8.9 are intended to be for the
benefit of, and will be enforceable by, each Indemnified Party, his or her heirs
and his or her Representative.
8.10 REGISTRATION STATEMENT; PROXY STATEMENT.
(a) As soon as possible after the execution of this Agreement,
Norrell and Interim shall prepare and file with the SEC the Registration
Statement, including therein the Proxy Statement to be sent to the shareholders
to each of Norrell and Interim and prospectus, in connection with the
registration under the 1933 Act of the shares of Interim Common Stock to be
issued to the holders of Norrell Common Stock pursuant to the Merger. Norrell
and Interim each shall use all reasonable efforts to cause the Registration
Statement to become effective as promptly as practicable, and, prior to the
effective date of the Registration Statement, Interim shall take all or any
action required under any applicable federal or state securities laws in
connection with the issuance of shares of Interim Common Stock pursuant to the
Merger. As promptly as practicable after the Registration Statement shall have
become effective, Norrell and Interim shall each mail the Proxy Statement to its
respective shareholders. The Proxy Statement shall include the recommendation of
the Board of Directors of Norrell and the recommendation of the Board of
Directors of Interim in favor of the Merger unless the Board of Directors of
Norrell withdraws such recommendation as permitted by Section 8.7 hereof.
No amendment or supplement to the Proxy Statement or the
Registration Statement will be made by Norrell or Interim without the approval
of the other party, which shall not be unreasonably withheld. Norrell or Interim
each will advise the other, promptly after it receives notice thereof, of the
time when the Registration Statement has become effective or any supplement or
amendment has been filed, the issuance of any stop order, the suspension of the
qualification of the Interim Common Stock issuable in connection with the Merger
for offering or sale in any jurisdiction, or any request by the SEC for
amendment of the Proxy Statement or the Registration Statement or comments
thereon and responses thereto or requests by the SEC for additional information.
(b) Norrell, Interim and Sub each hereby (i) consents to the use
of its name and, on behalf of its subsidiaries and affiliates, the names of such
subsidiaries and affiliates, and to the inclusion of financial statements and
business information relating to such party and its subsidiaries and affiliates
(in each case, to the extent required by applicable securities laws), in
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the Registration Statement and the Proxy Statement, (ii) agrees to use all
reasonable efforts to obtain the written consent of any person or entity
retained by it which may be required to be named (as an expert or otherwise) in
the Registration Statement or the Proxy Statement, and (iii) agrees to cooperate
fully, and agrees to use all reasonable efforts to cause its subsidiaries and
affiliates to cooperate fully, with any legal counsel, investment banker,
accountant or other agent or representative retained by any of the parties
specified in clause (i) above in connection with the preparation of any and all
information required, as determined after consultation with each party's
counsel, to be disclosed by applicable securities laws in the Registration
Statement or the Proxy Statement.
8.11 NORRELL SHAREHOLDERS' MEETING. Norrell shall call the Norrell
Shareholders' Meeting, to be held as soon as reasonably practicable, for the
purpose of approving this Agreement and the transactions contemplated thereby
and such other related matters as it deems appropriate.
8.12 INTERIM SHAREHOLDERS' MEETING. Interim shall call the Interim
Shareholders' Meeting, to be held as soon as reasonably practicable, for the
purpose of approving this Agreement and the transactions contemplated hereby and
such other related matters as it deems appropriate.
8.13 EXCHANGE LISTING. Interim shall use its reasonable efforts to
list, prior to the Effective Time, on the NYSE, subject to official notice of
issuance, the shares of Interim Common Stock to be issued to the holders of
Norrell Common Stock pursuant to the Merger, and Interim shall give all notices
and make all filings with the NYSE required in connection with the transactions
contemplated herein.
8.14 ACCESS TO INFORMATION From the date hereof until the earlier
of (i) the termination of this Agreement and (ii) the Effective Time, Norrell
and Interim will each provide to the other, during normal business hours and
upon reasonable notice, access to all information and documents which the other
may reasonably request regarding the business, assets, liabilities, employees
and other aspects of the other party, other than information and documents that
in the opinion of such other party's counsel may not be disclosed under
applicable Law.
8.15 ACCOUNTING AND TAX TREATMENT. Each Party undertakes and
agrees to use its reasonable best efforts to cause the Merger to qualify, and to
take no action which would cause the Merger not to qualify for treatment as a
"reorganization" within the meaning of Section 368(a) of the Code for federal
income tax purposes. No Party has any knowledge of any fact or circumstance that
would be reasonably likely to prevent the Merger from qualifying as a
reorganization within the meaning of Section 368(a) of the Code. Each Party
acknowledges and agrees that it will report this transaction to its respective
stockholders and to the Internal Revenue Service as a reorganization within the
meaning of Section 368(a) of the Code.
8.16 INTERIM'S ACCOUNTANT'S LETTERS. Interim undertakes and agrees
to use its reasonable best efforts to insure that Norrell shall have received
from Deloitte & Touche LLP letters dated (i) the date of the Proxy Statement and
(ii) the Effective Time, with respect to
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certain financial information regarding Interim, in form and substance
reasonably satisfactory to Norrell, which letters shall be based upon customary
specified procedures undertaken by such firm, containing statements and
information of the type ordinarily included in accountant's "comfort letters."
8.17 NORRELL'S ACCOUNTANT'S LETTERS. Norrell undertakes and agrees
to use its reasonable best efforts to insure that Interim shall have received
from Arthur Andersen LLP letters dated (i) the date of the Proxy Statement and
(ii) the Effective Time, with respect to certain financial information regarding
Norrell, in form and substance reasonably satisfactory to Interim, which letters
shall be based upon customary specified procedures undertaken by such firm,
containing statements and information of the type ordinarily included in
accountant's "comfort letters."
8.18 DIRECTOR SEAT. Following the Effective Time, the Board of
Directors of Interim shall take the required action to appoint Guy W. Millner,
or his nominee, to the Board of Directors of Interim. Such individual shall be
classified as a Class II Director, as set forth in the Certificate of
Incorporation and Bylaws of Interim, and whose initial term will expire at the
2001 Annual Meeting of Shareholders of Interim.
8.19 TAX OPINIONS. Interim undertakes and agrees to use its
reasonable best efforts to insure that Baker & McKenzie delivers the opinion
referred to in Section 9.2(e). Norrell undertakes and agrees to use its
reasonable best efforts to insure that Alston & Bird LLP delivers the opinion
referred to in Section 9.3(e).
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
-------------------------------------------------
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of each Party to perform this Agreement and consummate the Merger
and the other transactions contemplated hereby are subject to the satisfaction
of the following conditions, unless waived by both Parties pursuant to Section
11.6:
(a) NORRELL SHAREHOLDER APPROVAL. The shareholders of
Norrell will have approved this Agreement and the transactions contemplated
hereby, as and to the extent required by Law, by the provisions of the Articles
of Incorporation and Bylaws of Norrell, or by the rules of the NYSE.
(b) INTERIM SHAREHOLDER APPROVAL. The shareholders of
Interim will have approved this Agreement and the transactions contemplated
hereby, as and to the extent required by Law, by the provisions of the
Certificate of Incorporation and Bylaws of Interim, or by the rules of the NYSE.
(c) REGULATORY APPROVALS. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities (other than
such Consents as may be required
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from the PHC) required for consummation of the Merger will have been obtained or
made and will be in full force and effect and all waiting periods required by
Law will have expired. No Consent obtained from any Regulatory Authority which
is necessary to consummate the transactions contemplated hereby will be
conditioned or restricted in a manner which in the reasonable judgment of the
Board of Directors of Interim would so materially adversely impact the economic
or business benefits of the transactions contemplated by this Agreement that,
had such condition or requirement been known, such Party would not, in its
reasonable judgment, have entered into this Agreement.
(d) CONSENTS AND APPROVALS. Each Party will have obtained
any and all Consents (other than such Consents as may be required from the PHC)
required for consummation of the Merger (other than those referred to in Section
9.1(c)) or for the preventing of any Default under any Contract or Permit of
such Party which, if not obtained or made, is reasonably likely to have,
individually or in the aggregate, a Norrell Material Adverse Effect or an
Interim Material Adverse Effect, as applicable. No Consent so obtained which is
necessary to consummate the transactions contemplated hereby will be conditioned
or restricted in a manner which in the reasonable judgment of the Board of
Directors of Interim would so materially adversely impact the economic or
business benefits of the transactions contemplated by this Agreement that, had
such condition or requirement been known, such Party would not, in its
reasonable judgment, have entered into this Agreement.
(e) LEGAL PROCEEDINGS. No court or governmental or
regulatory authority of competent jurisdiction will have enacted, issued,
promulgated, enforced or entered any Law or Order (whether temporary,
preliminary or permanent) or taken any other action which prohibits, restricts
or makes illegal consummation of the transactions contemplated by this
Agreement.
(f) INJUNCTIONS; RESTRAINTS. No court or governmental or
regulatory authority of competent jurisdiction will have enacted, issued,
promulgated, enforced or entered any Law or Order (whether temporary,
preliminary or permanent) or taken any other action which prohibits, restricts
or makes illegal consummation of the transactions contemplated by this
Agreement.
(g) REGISTRATION STATEMENT. The Registration Statement shall
be effective under the 1933 Act, no stop orders suspending the effectiveness of
the Registration Statement shall have been issued, no action, suit, proceeding
or investigation by the SEC to suspend the effectiveness thereof shall have been
initiated and be continuing, and all necessary approvals under state securities
Laws or the 1933 Act or 1934 Act relating to the issuance or trading of the
shares of Interim Common Stock issuable pursuant to the Merger shall have been
received.
(h) EXCHANGE LISTING. The shares of Interim Common Stock
issuable pursuant to the Merger shall have been approved for listing on the
NYSE, subject to official notice of issuance.
9.2 CONDITIONS TO OBLIGATIONS OF INTERIM. The obligations of
Interim to perform this Agreement and consummate the Merger and the other
transactions contemplated hereby are
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subject to the satisfaction of the following conditions, unless waived by
Interim pursuant to Section 11.6(a):
(a) REPRESENTATIONS. The representations of Norrell set
forth in this Agreement (other than the representations set forth in Section
5.3) will be true and correct at the Effective Time as though all such
representations had been made at the Effective Time (provided that
representations which are confined to a specified date will speak only as of
such date). The representations of Norrell set forth in Section 5.3 will be true
and correct at the Effective Time (except for changes permitted under Section
7.2(d) hereof and inadvertent and de minimis errors in the number of shares
outstanding or the number of shares subject to Equity Rights).
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of
the agreements and covenants of Norrell to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby prior to
the Effective Time will have been duly performed and complied with in all
material respects.
(c) CERTIFICATES. Norrell will have delivered to Interim (i)
a certificate, dated as of the Effective Time and signed on its behalf by its
chief executive officer and its chief financial officer, to the effect that the
conditions set forth in Section 9.1 as relates to Norrell and in Section 9.2(a)
and 9.2(b) have been satisfied, and (ii) certified copies of resolutions duly
adopted by Norrell's Board of Directors and shareholders evidencing the taking
of all corporate action necessary to authorize the execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, all in such reasonable detail as Interim and its counsel
will request.
(d) FAIRNESS OPINION. At the Effective Time, NationsBanc
Montgomery Securities LLC shall have reaffirmed in writing the opinion described
in Section 6.13, as if such opinion was issued on such date.
(e) TAX OPINION. Interim shall have received from Baker &
McKenzie its opinion, in form and substance reasonably satisfactory to Interim,
dated as of the Effective Time, substantially to the effect that, on the basis
of facts, representations and assumptions set forth in such opinion:
(i) the Merger of Norrell into Sub and the issuance of
shares of Interim Common Stock in connection therewith, as described in
this Agreement, will constitute a tax-free reorganization as defined in
Section 368(a) of the Code.
(ii) Each of Norrell, Interim and Sub will be considered a
party to the reorganization.
(iii) Except for the recognition of gain as required by
Section 356(a) of the Code with respect to the receipt by shareholders
of Norrell of cash either in lieu of the issuance of fractional shares
of Interim Common Stock or as a Cash
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Payment, no gain or loss will be recognized by shareholders of Norrell
upon the exchange of Norrell Common Stock for Interim Common Stock as a
result of the Merger.
(iv) In general, cash received by holders of Norrell
Common Stock in lieu of fractional shares or as a Cash Payment will be
treated as amounts distributed in redemption of their shares and will
be taxable under the provisions of Section 302 of the Code.
9.3 CONDITIONS TO OBLIGATIONS OF NORRELL. The obligations of
Norrell to perform this Agreement and consummate the Merger and the other
transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by Norrell pursuant to Section 11.6(b):
(a) REPRESENTATIONS. The representations of Interim set
forth in this Agreement will be true and correct at the Effective Time as though
all such representations and warranties had been made at the Effective Time
(provided that representations and warranties which are confined to a specified
date will speak only as of such date).
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of
the agreements and covenants of Interim to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby prior to
the Effective Time will have been duly performed and complied with in all
material respects.
(c) CERTIFICATES. Interim will have delivered to Norrell (i)
a certificate, dated as of the Effective Time and signed on its behalf by its
chief executive officer and its chief financial officer, to the effect that the
conditions set forth in Section 9.1 as relates to Interim and in Section 9.3(a)
and 9.3(b) have been satisfied, and (ii) certified copies of resolutions duly
adopted by Interim's Board of Directors and shareholders and Sub's Board of
Directors and sole shareholder evidencing the taking of all corporate action
necessary to authorize the execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated hereby, all in
such reasonable detail as Norrell and its counsel will request.
(d) FAIRNESS OPINION. At the time of the mailing of the Proxy
Statement to the Norrell Shareholders, Goldman Sachs & Co. shall have reaffirmed
in writing the opinion described in Section 5.12 herein, as if such opinion was
issued on such date, and such opinion shall not have been withdrawn prior to the
Effective Time.
(e) TAX OPINION. Norrell shall have received from Alston &
Bird LLP its opinion, in form and substance reasonably satisfactory to Norrell,
dated as of the Effective Time, substantially to the effect that, on the basis
of facts, representations and assumptions set forth in such opinion:
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(i) the Merger of Norrell into Sub and the issuance of
shares of Interim Common Stock in connection therewith, as described in
this Agreement, will constitute a tax-free reorganization as defined in
Section 368(a) of the Code.
(ii) Each of Norrell, Interim and Sub will be considered a
party to the reorganization.
(iii) Except for the recognition of gain as required by
Section 356(a) of the Code with respect to the receipt by shareholders
of Norrell of cash either in lieu of the issuance of fractional shares
of Interim Common Stock or as a Cash Payment, no gain or loss will be
recognized by shareholders of Norrell upon the exchange of Norrell
Common Stock for Interim Common Stock as a result of the Merger.
(iv) In general, cash received by holders of Norrell
Common Stock in lieu of fractional shares or as a Cash Payment will be
treated as amounts distributed in redemption of their shares and will
be taxable under the provisions of Section 302 of the Code.
Notwithstanding the foregoing, in the event that Alston & Bird
LLP fails for any reason to deliver the opinion referred to in this Section
9.3(e), then this condition may be satisfied by the delivery to Norrell of the
opinion referred to in Section 9.2(e), which opinion shall expressly permit the
reliance of Norrell thereon.
ARTICLE 10
TERMINATION
-----------
10.1 TERMINATION. This Agreement may be terminated and the Merger
abandoned at any time prior to the Effective Time:
(a) By mutual consent of Interim and Norrell; or
(b) By either Party (provided that the terminating Party is not
then in material breach of any representation, warranty, covenant, or other
agreement contained in this Agreement) in the event of a material breach by the
other Party of any representation or warranty contained in this Agreement which
cannot be cured or has not been cured within 30 days after the giving of written
notice to the breaching Party of such breach and which breach would be
reasonably likely, in the opinion of the non-breaching Party, to have,
individually or in the aggregate, a Norrell Material Adverse Effect or an
Interim Material Adverse Effect, as applicable, on the breaching Party; or
(c) By either Party (provided that the terminating Party is not
then in material breach of any representation, warranty, covenant, or other
agreement contained in this Agreement) in the event of a material breach by the
other Party of any covenant or agreement
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contained in this Agreement which cannot be cured or has not been cured within
30 days after the giving of written notice to the breaching Party of such breach
and which breach would be reasonably likely, in the opinion of the non-breaching
Party, to have, individually or in the aggregate, a Norrell Material Adverse
Effect or a Interim Material Adverse Effect, as applicable, on the breaching
Party; or
(d) By either Party (provided that the terminating Party is not
then in material breach of any representation, warranty, covenant, or other
agreement contained in this Agreement) in the event (i) any Consent of any
Regulatory Authority required for consummation of the Merger will have been
denied by final nonappealable action of such authority or if any action taken by
such authority is not appealed within the time limit for appeal, (ii) the
shareholders of Norrell fail to vote their approval of this Agreement and the
transactions contemplated hereby at the Norrell Shareholders' Meeting where such
matters were presented to such shareholders for approval and voted upon, except
under the circumstances set forth in Section 10.1(h)(iii), or (iii) the
shareholders of Interim fail to vote their approval of this Agreement and the
transactions contemplated hereby at the Interim Shareholders' Meeting where such
matters were presented to such shareholders for approval and voted upon;
(e) By either Party in the event that the Merger will not have
been consummated by September 30, 1999, if the failure to consummate the
transactions contemplated hereby on or before such date is not caused by any
breach of this Agreement by the Party electing to terminate pursuant to this
Section 10.1(e); or
(f) By either Party (provided that the terminating Party is not
then in material breach of any representation, warranty, covenant, or other
agreement contained in this Agreement) in the event that any of the conditions
precedent to the obligations of such Party to consummate the Merger cannot be
satisfied or fulfilled by the date specified in Section 10.1(e); or
(g) By Interim, in the event that the Board of Directors of
Norrell withdraws or fails to reaffirm its approval of this Agreement and the
transactions contemplated hereby (to the exclusion of any other Acquisition
Proposal), or resolves not to reaffirm the Merger, or affirms, recommends or
authorizes entering into any other Acquisition Proposal or other transaction
involving a merger, share exchange, consolidation or transfer of substantially
all of the Assets of Norrell;
(h) By Norrell, in the event that either (i) the Board of
Directors of Norrell withdraws or modifies its approval or recommendation of
this Agreement and the transactions contemplated hereby while there is a
Superior Proposal outstanding, (ii) Norrell enters into any letter of intent,
agreement in principle, acquisition agreement or other agreement with respect to
an Acquisition Proposal that is a Superior Proposal or with respect to which the
Board of Directors Norrell has determined, in good faith after consultation with
and upon the advice of outside counsel, that the failure to enter into such
letter of intent, agreement in principle, acquisition agreement or other
agreement would be reasonably likely to constitute a breach of its fiduciary
duties to Norrell's shareholders under applicable law, or (iii) following the
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commencement, public proposal, public disclosure or communications of an
Acquisition Proposal to Norrell (or the public disclosure or communication to
Norrell of the willingness of any Person to make an Acquisition Proposal), the
requisite approval of Norrell's shareholders for the Merger is not obtained at
the Norrell Shareholders' Meeting; or
(i) By either Party if the Base Period Trading Price is less
than $12.00.
10.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 10.1, this Agreement will
become void and have no effect, except that (i) the provisions of this Section
10.2 and Section 8.5 and Article 11 will survive any such termination and
abandonment, and (ii) a termination pursuant to Sections 10.1(b), 10.1(c) or
10.1(f) will not relieve the breaching Party from Liability for an uncured
willful breach of a representation, warranty, covenant, or agreement giving rise
to such termination.
10.3 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS. The respective
representations, warranties, obligations, covenants, and agreements of the
Parties will not survive the Effective Time except this Section 10.3 and
Articles 1, 2, 3, 4 and 11 and Sections 8.5, 8.8 and 8.9 shall survive the
Effective Time and shall not be extinguished by the consummation of the Merger.
ARTICLE 11
MISCELLANEOUS
-------------
11.1 DEFINITIONS.
(a) Except as otherwise provided herein, the capitalized
terms set forth below will have the following meanings:
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as
amended.
"AFFILIATE" of a Person means: (i) any other Person directly,
or indirectly through one or more intermediaries, controlling, controlled
by or under common control with such Person; (ii) any officer, director,
partner, employer, or direct or indirect beneficial owner of any 10% or
greater equity or voting interest of such Person; or (iii) any other
Person for which a Person described in clause (ii) acts in any such
capacity.
"AGREEMENT" means this Agreement and Plan of Merger.
"ARTICLES OF MERGER" means the Articles of Merger to be
executed by Norrell and filed with the Secretary of State of the State of
Georgia relating to the Merger as contemplated by Section 1.1.
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"ASSETS" of a Person means all of the assets, properties,
businesses and rights of such Person of every kind, nature, character and
description, whether real, personal or mixed, tangible or intangible,
accrued or contingent, or otherwise relating to or utilized in such
Person's business, directly or indirectly, in whole or in part, whether
or not carried on the books and records of such Person, and whether or
not owned in the name of such Person or any Affiliate of such Person and
wherever located.
"BASE PERIOD TRADING PRICE" means the average of the daily
closing sale prices for shares of Interim Common Stock for the twenty
(20) consecutive full trading days on which such shares are actually
traded on the NYSE ending at the close of trading on the second trading
day immediately preceding the Effective Time.
"CERTIFICATE OF MERGER" means the Certificate of Merger to be
executed by Sub and filed with the Secretary of State of the State of
Delaware relating to the Merger as contemplated by Section 1.1.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONSENT" means any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by, or required
notices of filings with, any Person pursuant to any Contract, Law, Order
or Permit.
"CONTRACT" means any written agreement, arrangement,
authorization, commitment, contract, indenture, instrument, lease,
obligation, plan, practice, restriction, understanding, or undertaking of
any kind or character, or other document to which any Person is a party
or that is binding on any Person or its capital stock, Assets or
business.
"DGCL" means the General Corporation Law of the State of
Delaware.
"DEFAULT" means (i) any breach or violation of, default under,
contravention of, or conflict with, any Contract, Law, Order, or Permit,
(ii) any occurrence of any event that with the passage of time or the
giving of notice or both would constitute a breach or violation of,
default under, contravention of, or conflict with, any Contract, Law,
Order, or Permit, or (iii) any occurrence of any event that with or
without the passage of time or the giving of notice would give rise to a
right of any Person to exercise any remedy or obtain any relief under,
terminate or revoke, suspend, cancel, or modify or change the current
terms of, or renegotiate, or to accelerate the maturity or performance
of, or to increase or impose any Liability under, any Contract, Law,
Order, or Permit, where, in any such event, such Default is reasonably
likely to have, individually or in the aggregate, a Norrell Material
Adverse Effect or a Interim Material Adverse Effect, as applicable.
"EXPENSES" means all actual documented fees and expenses
incurred or paid by or on behalf of Norrell or Interim, as applicable, in
connection with the Merger or the consummation of any of the transactions
contemplated by this Agreement, including all actual documented printing
costs and reasonable fees and expenses of counsel, investment banking
firms, accountants, experts and consultants to Norrell or Interim, as
applicable.
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"EQUITY RIGHTS" means all arrangements, calls, commitments,
Contracts, options, rights to subscribe to, scrip, understandings,
warrants, or other binding obligations of any character whatsoever
relating to, or securities or rights convertible into or exchangeable
for, shares of the capital stock of a Person or by which a Person is or
may be bound to issue additional shares of its capital stock or other
Equity Rights.
"EXCHANGE RATIO" means 0.9 to 1.0.
"GAAP" means generally accepted accounting principles,
consistently applied during the periods involved.
"GBCC" means the Georgia Business Corporations Code.
"HSR ACT" means Section 7A of the Clayton Act, as added by
Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder.
"INDEMNIFIED LIABILITIES" means the obligation to pay a
judgment, settlement, penalty, fine or reasonable expenses (including
attorneys' fees and court costs) incurred with respect to any threatened,
pending or contemplated claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal.
"INTERIM COMMON STOCK" means the $0.01 par value common stock
of Interim.
"INTERIM DISCLOSURE MEMORANDUM" means the written information
entitled "Interim Disclosure Memorandum" delivered prior to the date of
this Agreement to Norrell describing in reasonable detail the matters
contained therein and, with respect to each disclosure made therein,
specifically referencing each Section of this Agreement under which such
disclosure is being made. Information disclosed with respect to one
Section will be deemed disclosed for purposes of all other Sections
whether or not such other sections are specifically referred to in such
disclosure.
"INTERIM ENTITIES" means, collectively, Interim and all
Interim Subsidiaries, including Sub.
"INTERIM FINANCIAL STATEMENTS" means (i) the consolidated
statements of balance sheets (including related notes and schedules, if
any) of Interim as of December 25, 1998, and as of December 26, 1997, and
the related statements of income, changes in shareholders' equity, and
cash flows (including related notes and schedules, if any) for the three
fiscal years ended December 25, 1998, December 26, 1997 and December 27,
1996, as filed by Interim in SEC Documents, and (ii) the consolidated
balance sheets of Interim (including related notes and schedules, if any)
and related statements if income, changes in shareholders' equity, and
cash flows (including related notes and schedules, if any) included in
SEC Documents filed with respect to periods ended subsequent to December
25, 1998.
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"INTERIM MATERIAL ADVERSE EFFECT" means an event, change or
occurrence (other than general economic conditions or conditions
occurring or prevailing in the staffing industry generally) which,
individually or together with any other event, change or occurrence, has
or reasonably could be expected to have a material adverse impact on (i)
the business, operations, properties, financial position or results of
operations of Interim and its Subsidiaries, taken as a whole, or (ii) the
ability of Interim to perform its obligations under this Agreement or to
consummate the Merger or the other transactions contemplated by this
Agreement.
"INTERIM SHAREHOLDERS' MEETING" means the meeting of the
shareholders of Interim to be held pursuant to Section 8.12, including
any adjournment or adjournments thereof.
"INTERIM SUBSIDIARIES" mean the Subsidiaries of Interim,
which will include the Interim Subsidiaries described in the Interim
Disclosure Memorandum and any corporation or other organization acquired
as a Subsidiary of Interim in the future and held as a Subsidiary by
Interim at the Effective Time.
"KNOWLEDGE" as used with respect to a Person (including
references to such Person being aware of a particular matter) means those
facts that are known or should reasonably have been known after inquiry
to a commercially reasonable extent by the chairman, president, chief
financial officer, chief accounting officer, chief operating officer,
general counsel or any senior, executive or other corporate level vice
president of such Person.
"LAW" means any code, law (including common law), ordinance,
regulation, reporting or licensing requirement, rule, or statute
applicable to a Person or its Assets, Liabilities, or business, including
those promulgated, interpreted or enforced by any Regulatory Authority.
"LIABILITY" means any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty, cost or expense
(including costs of investigation, collection and defense), claim,
deficiency, guaranty or endorsement of or by any Person (other than
endorsements of notes, bills, checks, and drafts presented for collection
or deposit in the ordinary course of business) of any type, whether
accrued, absolute or contingent, liquidated or unliquidated, matured or
unmatured, or otherwise.
"LIEN" means any conditional sale agreement, default of title,
easement, encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, pledge, reservation, restriction, security interest, title
retention or other security arrangement, or any adverse right or
interest, charge, or claim of any nature whatsoever of, on, or with
respect to any property or property interest, other than (i) Liens for
current property Taxes not yet due and payable, (ii) Liens under existing
Norrell credit agreements and (iii) Liens which do not materially impair
the use of or title to the Assets subject to such Lien.
"LITIGATION" means any action, arbitration, cause of action,
claim, complaint, criminal prosecution, governmental or other examination
or investigation, hearing,
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<PAGE> 43
administrative or other proceeding relating to or affecting a Party, its
business, its Assets (including Contracts related to it), or the
transactions contemplated by this Agreement.
"MATERIAL" AND "MATERIAL" for purposes of this Agreement will
be determined in light of the facts and circumstances of the matter in
question; provided that any specific monetary amount stated in this
Agreement will determine materiality in that instance.
"MERGER CONSIDERATION" means the Cash Payment and/or the
Merger Shares.
"NORRELL COMMON STOCK" means the no par value common stock of
Norrell.
"NORRELL DISCLOSURE MEMORANDUM" means the written information
entitled "Norrell Disclosure Memorandum" delivered prior to the date of
this Agreement to Interim describing in reasonable detail the matters
contained therein and, with respect to each disclosure made therein,
specifically referencing each Section of this Agreement under which such
disclosure is being made. Information disclosed with respect to one
Section will be deemed disclosed for purposes of all other Sections
whether or not such other sections are specifically referred to in such
disclosure.
"NORRELL ENTITIES" means, collectively, Norrell and all
Norrell Subsidiaries.
"NORRELL FINANCIAL STATEMENTS" means (i) the consolidated
statements of balance sheets (including related notes and schedules, if
any) of Norrell as of November 1, 1998, and as of November 2, 1997 , and
the related statements of income, changes in shareholders' equity, and
cash flows (including related notes and schedules, if any) for the three
fiscal years ended November 1, 1998, November 2, 1997 and October 27,
1996, as filed by Norrell in SEC Documents, and (ii) the consolidated
balance sheets of Norrell (including related notes and schedules, if any)
and related statements of income, changes in shareholders' equity, and
cash flows (including related notes and schedules, if any) included in
SEC Documents filed with respect to periods ended subsequent to November
1, 1998.
"NORRELL MATERIAL ADVERSE EFFECT" means an event, change or
occurrence (other than general economic conditions or conditions
occurring or prevailing in the staffing industry generally) which,
individually or together with any other event, change or occurrence, has
or reasonably could be expected to have a material adverse impact on (i)
the business, operations, properties, financial position, or results of
operations of Norrell and its Subsidiaries, taken as a whole, or (ii) the
ability of Norrell to perform its obligations under this Agreement or to
consummate the Merger or the other transactions contemplated by this
Agreement.
"NORRELL SHAREHOLDERS' MEETING" means the meeting of the
shareholders of Norrell to be held pursuant to Section 8.11, including
any adjournment or adjournments thereof.
"NORRELL STOCK PLANS" means the existing Employee Stock
Purchase Plan and the stock option plans of Norrell designated as
follows: 1991 Stock Option Plan, 1994 Stock
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<PAGE> 44
Incentive Plan, Massey Investment Co. Agreement, Comtex Stock Option Plan
and Non-Qualified Deferred Compensation Plan.
"NORRELL SUBSIDIARIES" means the Subsidiaries of Norrell,
which will include the Norrell Subsidiaries described in Section 5.4 of
the Norrell Disclosure Memorandum and any corporation or other
organization acquired as a Subsidiary of Norrell in the future and held
as a Subsidiary by Norrell at the Effective Time.
"NYSE" means the New York Stock Exchange, Inc.
"ORDER" means any administrative decision or award, decree,
injunction, judgment, order, quasi-judicial decision or award, ruling, or
writ of any federal, state, local or foreign or other court, arbitrator,
mediator, tribunal, administrative agency, or Regulatory Authority.
"PARTY" means either Norrell or Interim or Sub, and "PARTIES"
will mean Norrell, Interim and Sub collectively.
"PERMIT" means any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, notice, permit, or right to which any Person is a
party or that is or may be binding upon or inure to the benefit of any
Person or its securities, Assets, or business.
"PERSON" means a natural person or any legal, commercial or
governmental entity, such as, but not limited to, a corporation, general
partnership, joint venture, limited partnership, limited liability
company, trust, business association, group acting in concert, or any
person acting in a representative capacity.
"PROXY STATEMENT" means the joint proxy statement used by
Norrell to solicit the approval of its shareholders of this Agreement and
the transactions contemplated hereby and by Interim to solicit the
approval of its shareholders of this Agreement and the transactions
contemplated hereby.
"REGISTRATION STATEMENT" means the Registration Statement on
Form S-4, or other appropriate form, including any pre-effective or
post-effective amendments or supplements thereto, filed with the SEC by
Interim under the 1933 Act with respect to the shares of Interim Common
Stock to be issued to the shareholders of Norrell in connection with the
transactions contemplated by this Agreement.
"REGULATORY AUTHORITIES" means, collectively, the Federal
Trade Commission, the United States Department of Justice, SEC, Internal
Revenue Service, NYSE, Pension Benefit Guaranty Corporation and all other
federal, state, county, local or other governmental or regulatory
agencies, authorities (including self-regulatory authorities),
instrumentalities, commissions, boards or bodies having jurisdiction over
the Parties and their respective Subsidiaries (whether domestic or
foreign).
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<PAGE> 45
"REPRESENTATIVE" means any investment banker, financial
advisor, attorney, accountant, consultant, or other representative
engaged by a Person.
"SEC" means the Securities and Exchange Commission.
"SEC DOCUMENTS" means all forms, proxy statements,
registration statements, reports, schedules, and other documents filed,
or required to be filed, by a Party or any of its Subsidiaries with any
Regulatory Authority pursuant to the Securities Laws.
"SECURITIES LAWS" means the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors Act
of 1940, as amended, the Trust Indenture Act of 1939, as amended, and the
rules and regulations of any Regulatory Authority promulgated thereunder.
"SUB COMMON STOCK" means $0.01 par value common stock of Sub.
"SUBSIDIARIES" means all those corporations, associations, or
other business entities of which the entity in question either (i) owns
or controls 50% or more of the outstanding equity securities either
directly or through an unbroken chain of entities as to each of which 50%
or more of the outstanding equity securities is owned directly or
indirectly by its parent (provided, there will not be included any such
entity the equity securities of which are owned or controlled in a
fiduciary capacity), (ii) in the case of partnerships, serves as a
general partner, (iii) in the case of a limited liability company, serves
as a managing member, or (iv) otherwise has the ability to elect a
majority of the directors, trustees or managing members thereof.
"SURVIVING CORPORATION" means Sub as the surviving corporation
resulting from the Merger.
(b) The terms set forth below will have the meanings ascribed
thereto in the referenced sections:
Acquisition Proposal Section 8.7(a)
Cash Election Section 3.1(e)
Cash Election Shares Section 3.1(d)
Certificates Section 4.1
Cash Payment Section 3.1(d)
Closing Section 1.2
Declared Dividend Section 4.2
Deemed Cash Purchase Price Section 3.1(f)
Effective Time Section 1.3
Election Section 3.1(d)
Election Deadline Section 3.1(e)
Election Form Section 3.1(e)
Election Form Record Date Section 3.1(e)
Exchange Agent Section 4.1
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<PAGE> 46
Indemnified Party Section 8.9(a)
Interim SEC Reports Section 6.8(a)
Mailing Date Section 3.1(e)
Material Interim Contract Section 6.12
Material Norrell Contract Section 5.8
Maximum Cash Payment Section 3.1(f)
Maximum Cash Election Shares Section 3.1(f)
Merger Section 1.1
Merger Shares Section 3.1(c)
Percentage Maximum Section 3.1(f)
Norrell Options Section 3.4(a)
Norrell SEC Reports Section 5.5(a)
PHC Section 8.3
Second Request Section 8.1
Superior Proposal Section 8.7(a)
(c) Any singular term in this Agreement will be deemed to
include the plural, and any plural term the singular. Whenever the words
"include," "includes" or "including" are used in this Agreement, they will be
deemed followed by the words "without limitation."
11.2 EXPENSES.
(a) Except as otherwise provided in this Section 11.2, each
of the Parties will bear and pay all direct costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial or other consultants,
investment bankers, accountants and counsel; PROVIDED, HOWEVER, that HSR filing
fees and all expenses, other than attorneys fees, related to printing, filing
and mailing the Registration Statement and the Proxy Statement and all SEC and
other regulatory filing fees incurred in connection with the Registration
Statement and the Proxy Statement will be borne one-half each.
(b) Notwithstanding the foregoing, if either
(i) this Agreement is terminated by Interim pursuant
to any of Sections 10.1(b), 10.1(c), 10.1(d)(ii) (as relates to approval
of Norrell's shareholders), 10.1(f) (based upon the failure of Norrell or
its shareholders, as the case may be, to satisfy any of the conditions
set forth in Sections 9.2), 10.1(g) or 10.1(i), or
(ii) this Agreement is terminated by Norrell pursuant
to Section 10.1(h), 10.1(i) or 10.1(d)(ii) (as it relates to approval of
Norrell's shareholders) or 10.1(f) (based upon the failure of the
conditions set forth in Section 9.3(d)),
then Norrell will promptly pay Interim an amount in cash equal to
Interim's Expenses up to $1,000,000.
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<PAGE> 47
(c) Notwithstanding the foregoing, if this Agreement is
terminated by Norrell pursuant to any of Sections 10.1(b), 10.1(c), or 10.1(f)
(based upon the failure of Interim to satisfy any of the conditions set forth in
Section 9.3(a)(b) or (c)), then Interim will promptly pay Norrell an amount in
cash equal to Norrell's Expenses up to $1,000,000.
(d) In addition to the foregoing, if this Agreement is
terminated by Interim pursuant to Section 10.1(g) or Norrell pursuant to Section
10.1(h), Norrell will promptly pay to Interim an amount in cash equal to the sum
of
(i) Interim's Expenses up to $1,000,000, plus
(ii) $10,000,000, less
(iii) any amounts previously paid by Norrell to
Interim pursuant to Section 11.2(b),
which sum shall constitute liquidated damages in full and complete satisfaction
of, and shall be Interim's sole and exclusive remedy for any loss, liability,
damage or claim arising out of or in connection with any such termination of
this Agreement or the facts and circumstances resulting in such termination or
otherwise related to or otherwise arising out of or in connection with this
Agreement.
11.3 BROKERS AND FINDERS. Except for Goldman Sachs & Co. and CLB
Advisors, LLC as to Norrell and except for NationsBanc Montgomery Securities LLC
as to Interim, each of the Parties represents and warrants that neither it nor
any of its officers, directors, employees, or Affiliates has employed any broker
or finder or incurred any Liability for any financial advisory fees, investment
bankers' fees, brokerage fees, commissions, or finders' fees in connection with
this Agreement or the transactions contemplated hereby. In the event of a claim
by any broker or finder based upon his or its representing or being retained by
or allegedly representing or being retained by Norrell or by Interim, each of
Norrell and Interim, as the case may be, agrees to indemnify and hold the other
Party harmless of and from any Liability in respect of any such claim.
11.4 ENTIRE AGREEMENT. Except as otherwise expressly provided
herein, this Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement between the Parties with respect to the
transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereto, written or oral. Nothing in this Agreement
expressed or implied, is intended to confer upon any Person, other than the
Parties or their respective successors, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, other than as provided in
Sections 8.8 and 8.9.
11.5 AMENDMENTS. This Agreement may be amended by a subsequent
writing signed by each of the Parties upon the approval of each of the Parties,
but only if such amendment is effective prior to the approval of this Agreement
by the Shareholders of Norrell.
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<PAGE> 48
11.6 WAIVERS.
(a) Prior to or at the Effective Time, Interim, acting
through its Board of Directors, chief executive officer or other authorized
officer, will have the right to waive any Default in the performance of any term
of this Agreement by Norrell, to waive or extend the time for the compliance or
fulfillment by Norrell of any and all of its obligations under this Agreement,
and to waive any or all of the conditions precedent to the obligations of
Interim under this Agreement, except any condition which, if not satisfied,
would result in the violation of any Law. No such waiver will be effective
unless in writing signed by a duly authorized officer of Interim.
(b) Prior to or at the Effective Time, Norrell, acting
through its Board of Directors, chief executive officer or other authorized
officer, will have the right to waive any Default in the performance of any term
of this Agreement by Interim, to waive or extend the time for the compliance or
fulfillment by Interim of any and all of its obligations under this Agreement,
and to waive any or all of the conditions precedent to the obligations of
Norrell under this Agreement, except any condition which, if not satisfied,
would result in the violation of any Law. No such waiver will be effective
unless in writing signed by a duly authorized officer of Norrell.
(c) The failure of any Party at any time or times to require
performance of any provision hereof will in no manner affect the right of such
Party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term contained in
this Agreement in one or more instances will be deemed to be or construed as a
further or continuing waiver of such condition or breach or a waiver of any
other condition or of the breach of any other term of this Agreement.
11.7 ASSIGNMENT. Except as expressly contemplated hereby, neither
this Agreement nor any of the rights, interests or obligations hereunder will be
assigned by any Party hereto (whether by operation of Law or otherwise) without
the prior written consent of the other Party. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and be enforceable
by the Parties and their respective successors and assigns.
11.8 NOTICES. All notices or other communications which are
required or permitted hereunder will be in writing and sufficient if delivered
by hand, by facsimile transmission, by registered or certified mail, postage
pre-paid, or by courier or overnight carrier, to the persons at the addresses
set forth below (or at such other address as may be provided hereunder), and
will be deemed to have been delivered as of the date so delivered:
Norrell: Norrell Corporation
3535 Piedmont Rd, NE
Atlanta, GA 30305
Attention: Mark Hain, Esq.
Telephone: (404) 240-3158
Telecopy: (404) 240-5572
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<PAGE> 49
Copy to Counsel: Alston & Bird LLP
(which shall not One Atlantic Center
constitute notice) 1201 West Peachtree Street
Atlanta, GA 30309
Attention: Sidney J. Nurkin, Esq.
Telephone: (404) 881-7260
Telecopy: (404) 881-4777
Interim: Interim Services Inc.
Corporate Service Center
2050 Spectrum Boulevard
Ft. Lauderdale, FL 33309
Attention: John B. Smith, Esq.
Telephone: (954) 938-7710
Telecopy: (954) 938-7780
Copy to Counsel:
(which shall not Baker & McKenzie
constitute notice) 1200 Brickell Ave.
Nineteenth Floor
Miami, FL 33131
Attention: Andrew Hulsh, Esq.
Telephone: (305) 789-8985
Telecopy: (305) 789-8953
11.9 GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the Laws of the State of Georgia, without regard to
any applicable conflicts of Laws.
11.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one and the same instrument.
11.11 CAPTIONS; ARTICLES AND SECTIONS. The captions contained in
this Agreement are for reference purposes only and are not part of this
Agreement. Unless otherwise indicated, all references to particular Articles or
Sections will mean and refer to the referenced Articles and Sections of this
Agreement.
11.12 INTERPRETATION. Neither this Agreement nor any uncertainty or
ambiguity herein will be construed or resolved against any party, whether under
any rule of construction or otherwise. No party to this Agreement will be
considered the draftsman. The parties acknowledge and agree that this Agreement
has been reviewed, negotiated, and accepted by all parties and their attorneys
and will be construed and interpreted according to the ordinary
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<PAGE> 50
meaning of the words used so as fairly to accomplish the purposes and
intentions of all parties hereto.
11.13 ENFORCEMENT OF AGREEMENT. The Parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the Parties will be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
11.14 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision will be interpreted
to be only so broad as is enforceable.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed on its behalf by its duly authorized officers as of the day and year
first above written.
INTERIM SERVICES INC.
By:
------------------------------
President
INTERIM MERGER CORPORATION
By:
------------------------------
President
NORRELL CORPORATION
By:
------------------------------
President
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<PAGE> 1
EXHIBIT 99.1
- --------------------------------------------------------------------------------
Interim Services Inc. and Norrell Corporation to Merge;
Transaction to create $4 billion leader in staffing, human capital management
- --------------------------------------------------------------------------------
Ft. Lauderdale, FL and Atlanta, GA, March 25, 1999 --- Interim Services Inc.
(NYSE:IS) and Norrell Corporation (NYSE:NRL), two of the world's leading
workforce management companies, today announced a definitive agreement for
Norrell to merge with Interim.
Shareholders of Norrell will receive 0.9 shares of Interim stock for each
Norrell share on a tax-deferred basis. Norrell shareholders electing to
receive cash in lieu of stock will have the right to do so within certain
limitations and on a taxable basis. The Interim stock will constitute a
maximum of 90 percent of the total consideration. Based on yesterday's
closing price and estimated debt to be assumed, the transaction is valued at
approximately $553 million. The transaction is expected to conclude during
the second quarter 1999 subject to regulatory and shareholder approval. The
transaction, which will be accounted for as a purchase and at the maximum
stock component, is expected to be accretive to Interim 1999 diluted
earnings per share by about $0.01. This accretion estimate does not include
potential operating synergies, but does take into consideration a reduction
in net earnings expectations for Norrell's 1999 fiscal year to approximately
$1.39 to $1.42 per share. The foregoing estimates also exclude Norrell's Y2K
operating charges during the last six months of 1999, which are projected to
be $ 0.10 per diluted Interim share. Accretion per diluted Interim share for
the year 2000, including currently estimated operating synergies, is
expected to be $0.10 to $0.20.
"The merger with Norrell brings the development of our portfolio of services in
the area of human capital management to near completion. The transaction
significantly increases the scope of our information technology, accounting and
commercial staffing business units, while adding two new services to the Interim
portfolio -- outsourcing and call center services," said Interim Chairman,
President and CEO Ray Marcy. "In addition, we have adequately penetrated the
North American market through the merger with Norrell and expect this
transaction to mark the completion of large acquisitions in North America."
"Our organization has always had the highest level of respect for Norrell as a
competitor. Interim and Norrell adhere to a similar sales strategy that focuses
on value-added services, as opposed to price discounting. In addition, both
Interim and Norrell have evolved to offer clients a variety of services that aid
in the strategic management of human capital. Because of the similarity in sales
philosophy and the complementary nature of the two companies' field locations
and service offerings, we believe integration will be a smooth and successful
process."
Marcy added, "We look forward to the geographical coverage that will make us a
powerful force in key areas, such as Chicago, Atlanta, Northern California, and
the Northeast, as well as the addition of Norrell's global account team, which
focuses on high-level integrated sales. We stand to benefit from the fact that
while Interim has targeted Fortune 1000 clients, Norrell has focused more on
Fortune 100 clients."
Doug Miller, Norrell chairman and chief executive officer, said "Norrell and
Interim share a similar vision and have pursued marketplace positioning as
strategic workforce management and human capital management companies,
<PAGE> 2
respectively. The combined companies will have enhanced capabilities to serve
clients on a global basis with the widest range of services available in the
industry."
Positive Service Mix Shift
The merger with Norrell will result in significant changes to the Interim
service mix, reflecting a continuing emphasis on professional and
managed\services. Combined for the calendar year 1999, service mix for the
combined companies is expected to be as follows:
* Managed services will increase from approximately 16% to nearly 26% of
revenues.
* Permanent placement business shifts from 13% to 8% of revenues.
* Flexible staffing will remain at 53% of revenues.
* Consulting revenues will decline from approximately 16% to 13% of
revenues.
Assuming completion of the merger, Interim estimates the combined companies'
1999 revenues will be $4 billion. Based upon 1998 information, Interim believes
the combined companies' industry ranking would be 3rd largest in the US in terms
of revenue and 4th largest worldwide in terms of EBITDA (earnings before
interest, taxes, depreciation and amortization).
Service lines new to Interim
Combining the companies' revenues for the calendar year 1999, the transaction is
estimated to add:
* More than $250 million in outsourcing revenues - a predominantly new area
of service for Interim - which would increase the Managed Staffing
revenues of the combined companies to approximately $1 billion. Norrell's
outsourcing business assumes responsibility for the management of
functions either at a client's site or at an independent service center.
Examples include administrative support centers, workforce selection,
sales resource and call centers.
* Significant expertise in call center operations, which is a natural and
strategic expansion of Interim's help desk business. Norrell's call
centers manage inbound communication such as reservations, customer
service requests and order processing.
Expansion of existing Interim service lines
Combining the companies' revenues for 1999, the transaction is estimated to
add:
* Information technology (IT) revenues of $250 million, increasing total IT
revenues for Interim to approximately $1 billion. The combined companies'
comprehensive IT service offerings would position Interim as a clear
global leader within this sector. Norrell's' complementary IT practice
areas include Enterprise Resource Product (ERP) implementation and
emerging technologies, as well as staffing, consulting and educational
services.
* More than $40 million in estimated accounting revenues, which
would extend Interim North American accounting revenues beyond the $100
million mark in 1999. Combined with Michael Page, Interim estimates total
worldwide accounting/finance revenues would exceed $600 million in 1999.
* Approximately $800 million in commercial staffing revenues, which would
shift the Interim commercial staffing business mix to 60% clerical and 40%
light industrial. Combined company commercial staffing revenues are
estimated at $1.8 billion in 1999. In addition, management believes that
the combined companies' success in the On-Premise service line would
create a clear and powerful North American leader in this area.
* Interim's successful internal technology strategies are expected to
provide operating efficiencies and solutions that complement Norrell's
internal technology initiatives.
<PAGE> 3
Management Change
Doug Miller, chairman and CEO, will remain with the combined companies for a
transition period and play a valuable role in the integration process and
transition of leadership to Marcy. Upon completion of the transaction, Norrell
founder Guy W. Millner, with an estimated 10% of outstanding Interim shares,
will be one of Interim's largest individual shareholders and a Director of
Interim.
This news release is intended to take advantage of the "safe harbor" provided by
the Private Securities Litigation Reform Act of 1995 with respect to such
forward-looking statements and contains certain forward-looking statements and
information that involve risks and uncertainties. Where used in this release,
the words "anticipate," "believe," "estimate," "expect," and similar expressions
are intended to identify forward-looking statements. The actual results of the
merged companies could differ materially from the results anticipated by such
forward looking statements. Among the factors that may have a direct bearing on
the companies' results are the companies' ability to attain expected synergies,
the ability to integrate Norrell's operations, fluctuations in economic
conditions in the companies' markets, the degree and nature of competition,
price competition, the companies' ability to recruit and place employees, their
ability to attract new clients and retain key management, and other factors
discussed in the reports filed by Interim and Norrell with the securities and
exchange commission.
About Interim Services Inc.
Interim Services Inc., headquartered in Ft. Lauderdale, FL, is a leader in the
assessment, measurement and deployment of human capital. Through a network of
nearly 880 offices throughout North America, Europe and Australia/Asia, the
Company generated revenues of approximately $1.9 billion in 1998. It provides
flexible staffing, consulting, search/recruitment and managed services in
accounting, information technology, legal, human resources, sales and marketing;
as well as administrative, clerical and light industrial. More information is
available on the Interim website at www.interim.com.
About Norrell Corporation
Norrell Corporation is a strategic workforce management company that
integrates client business strategies with workforce strategies to
strengthen organizational effectiveness and flexibility. With 1999
annualized revenues of approximately $1.4 billion, the company provides its
services to an extensive client base through a multinational network of
company-owned, franchised and outsourcing locations. Norrell's web site is
http://ww.norrell.com.
<PAGE> 1
EXHIBIT 99.2
IRREVOCABLE PROXY
-----------------
March 24, 1999
The undersigned do hereby irrevocably grant to Raymond Marcy, Roy
Krause and John B. Smith, and each of them, any of whom may act without the
joinder of any other, as his or its respective true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for each of them
and in their respective names, place and stead, in any and all capacities to
vote all of the shares of common stock, no par value, of Norrell Corporation, a
Georgia corporation ("Norrell"), owned of record by the undersigned (the
"Shares"), at any meeting of the stockholders of Norrell called for the purpose
of voting on the Merger (as defined below) (and any adjournment or postponement
thereof), solely for the purpose of voting the Shares in favor of the Merger (as
defined below) and approving and adopting the Merger Agreement (as defined
below). As used herein, the term "Merger Agreement" shall mean that certain
Agreement and Plan of Merger dated as of even date herewith by and among
Norrell, Interim Services Inc., a Delaware corporation ("Parent"), and Interim
Merger Corporation, a Delaware corporation ("Sub"); the term "Merger" shall have
the meaning ascribed thereto in the Merger Agreement. Any capitalized term used
but not defined herein shall have the meaning assigned to such term in the
Merger Agreement.
The undersigned acknowledge and agree that this Irrevocable Proxy is
coupled with an interest, constitutes, among other things, an inducement for
Parent and Sub to enter into the Merger Agreement, is irrevocable and shall not
be terminated except as set forth herein and any prior proxies are hereby
revoked and no subsequent proxies will be given (and, if given, will not be
effective) prior to the termination of this Irrevocable Proxy and that this
Irrevocable Proxy is for the purpose of voting with respect to the items set
forth in the preceding paragraph and for no other purpose, and that voting or
granting a proxy to vote on other matters is not limited by this Irrevocable
Proxy. Nothing contained herein shall prohibit or limit the right of any of the
undersigned to transfer, sell, pledge, assign or encumber the Shares to any
person or entity, so long as the transferee or assignee agrees in writing to be
bound by the provisions of this Irrevocable Proxy, and this Irrevocable Proxy
shall survive any such conveyance and bind any such transferee or assignee.
This Irrevocable Proxy shall terminate, with no further action on the
part of any person or entity, in the event that the Board of Directors of
Norrell withdraws its approval or recommendation of the Merger Agreement or the
Merger, or in the event that the Merger Agreement is terminated pursuant to
Section 10 thereof for any reason.
The death, incapacity or incompetency of the undersigned individual
shall not adversely affect the validity of this Irrevocable Proxy or the
enforceability of this Irrevocable Proxy by Parent or Sub, in which case the
personal representatives of the decedent, incapacitated or incompetent
undersigned individual shall continue to be bound by the provisions hereof.
<PAGE> 2
Nothing contained in this Irrevocable Proxy shall prevent or limit the
undersigned Guy W. Millner from acting in his capacity as a member of the Board
of Directors of Norrell in respect of any Acquisition Proposal as provided in
Sections 8.7(c), 8.7(d) and 10.1(h) of the Merger Agreement.
This Irrevocable Proxy is subject to the terms and conditions of those
certain Security Agreements by and between the undersigned and certain banks
pursuant to which the undersigned have granted security interests to such banks
in respect of certain of the Shares listed below:
1. Intangible Personal Property Security Agreement by Millner
Preferred L.L.C. in favor of Suntrust Bank, dated December 17,
1998;
2. Intangible Personal Property Security Agreement by Guy W.
Millner in favor of Suntrust Bank, dated December 17, 1998;
3. Pledge Agreement by and between M.I. Holdings, Inc. and
NationsBank, N.A., dated December 6, 1998; and
4. Pledge Agreement by and Guy W. Millner. and NationsBank, N.A.,
dated December 6, 1998.
M.I. Holdings, Inc. hereby represents and warrants that it is a
corporation duly and validly organized, validly existing and in good standing as
a corporation under the laws of Georgia, with full power and authority to enter
into and perform the obligations to be performed by it under this Irrevocable
Proxy.
Millner Preferred LLC hereby represents and warrants that it is a
limited liability company duly and validly organized, validly existing and in
good standing under the laws of the State of Nevada, with full power and
authority to enter into and perform the obligations to be performed by it under
this Irrevocable Proxy.
This Irrevocable Proxy constitutes valid and binding obligations of
each of the undersigned enforceable against them in accordance with it terms.
2
<PAGE> 3
IN WITNESS WHEREOF, the undersigned have executed this Irrevocable
Proxy on this 24th day of March, 1999.
- ------------------------
Guy W. Millner
M.I. HOLDINGS, INC.
By:
----------------------------------
Name: Guy W. Millner
Title:
MILLNER PREFERRED, LLC
By:
----------------------------------
Name: Guy W. Millner
Title:
MERGER CONSIDERATION ELECTION AGREEMENT
---------------------------------------
Terms with initial capitalization used in this Agreement shall have the
meanings assigned to such terms in the Irrevocable Proxy set forth above. Any
capitalized term used in the Irrevocable Proxy but not defined in the
Irrevocable Proxy shall have the meaning assigned to such term in the Merger
Agreement.
In the event the Elections of the shareholders of Norrell (including
the undersigned, if Elections are made by either of the undersigned) are not
made with respect to 10% or more of the total outstanding shares of Norrell in
the aggregate, the undersigned hereby agree to make Elections to receive cash
with respect to a number of shares of Norrell held by one or both of them which,
when added to those shares of other shareholders making Elections, will equal
10% of the aggregate outstanding shares of Norrell. The provision of this
Agreement shall not govern or restrict the Elections that can be made by the
undersigned with respect to any other shares held by them.
3
<PAGE> 4
IN WITNESS WHEREOF, the undersigned have executed this Merger
Consideration Election Agreement on this 24th day of March, 1999.
- ---------------------------
Guy W. Millner
MILLNER PREFERRED, LLC
By:
- --------------------------------
Name: Guy W. Millner
Title:
4
