<PAGE> 1
Exhibit 4.3
RESTATED CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF PARTICIPATING PREFERRED STOCK
OF
SPHERION CORPORATION
------------------------------------------------
Spherion Corporation, a corporation organized and existing under The
General Corporation Law of the State of Delaware (the "Company"), in accordance
with the provisions of Section 151(g) thereof, DOES HEREBY CERTIFY:
(i) That the name under which the Company was originally incorporated
is Interim Systems Corporation; and the date of filing the original certificate
of incorporation of the Company with the Secretary of State of the State of
Delaware was September 15, 1987 and that the Company changed its name on June
15, 1992 to Interim Services Inc. and changed its name again on July 7, 2000 to
Spherion Corporation. A Restated Certificate of Incorporation of the Company was
filed with the Secretary of State of the State of Delaware on November 4, 1993,
and Certificate of Amendments to said Restated Certificate of Incorporation were
filed with said office of the Secretary State on September 12, 1996, May 19,
1998 and July 6, 1999, respectively;
(ii) That pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Company, the
said Board of Directors on February 17, 1994, adopted the following resolution
creating a series of two hundred fifty thousand (250,000) shares of voting
Preferred Stock designated as Participating Preferred Stock and a Certificate of
Designations, Preferences and Rights of the Participating Preferred Stock, $.01
par value was filed with the Delaware Secretary of State on March 25, 1994;
(iii) That the Board of Directors of said Company at a meeting held on
August 7, 1997 duly adopted a resolution authorizing and directing an increase
in the number of shares designated as Participating Preferred Stock, $.01 par
value, of the Company, from two-hundred, fifty thousand (250,000) shares to
five-hundred-thousand (500,000) shares, in accordance with the provisions of
Section 151 of The General Corporation Law of the State of Delaware and that a
Certificate of Increase of Shares Designated as Participating Preferred Stock
was filed on September 23, 1997 with the Delaware Secretary of State;
(iv) That effective as of July 7, 2000, a wholly owned subsidiary of
the Company, Spherion Corporation, merged with and into the Company and
effective upon the merger, the Company changed its name to Spherion Corporation;
and
(v) That the Board of Directors of said Company at a meeting held on
May 23, 2000 duly adopted resolutions approving a Restated Certificate of
Incorporation, integrating the amendments made since the last restatement of the
Certificate of Incorporation, including the
<PAGE> 2
name change effective as of July 7, 2000, and ratifying and confirming the
resolutions referenced above and authorizing the restatement of the Certificate
of Designation, Preferences and Rights of Participating Preferred Stock of the
Company as heretofore amended and/or supplemented, which is hereby restated and
integrated into the single instrument which is hereinafter set forth, and which
is entitled "Restated Certificate of Designation, Preferences and Rights of
Participating Preferred Stock of Spherion Corporation," without further
amendment and without any discrepancy between the provisions of the Certificate
of Designation as heretofore amended and supplemented and the provisions of the
said single instrument hereinafter set forth:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Company in accordance with the provisions of its Certificate of
Incorporation, as amended, a series of voting Preferred Stock of the Company be
and it is hereby created, and that the designation and amount thereof and the
powers, preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications, limitations or
restrictions thereof are as follows:
Section 1. Designation and Amount. There shall be a series of the
voting preferred stock of the Company which shall be designated as
"Participating Preferred Stock," $.01 par value per share, and the number of
shares constituting such series shall be 500,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided, that
no decrease shall reduce the number of shares of Participating Preferred Stock
to a number less than that of the shares then outstanding plus the number of
shares issuable upon exercise of outstanding rights, options or warrants or upon
conversion of outstanding securities issued by the Company.
Section 2. Dividends and Distributions.
(a) Subject to the rights of the holders of any shares of any series of
preferred stock of the Company ranking prior and superior to the Participating
Preferred Stock with respect to dividends, the holders of shares of
Participating Preferred Stock, in preference to the holders of shares of Common
Stock, $.01 par value per share (the "Common Stock"), of the Company and of any
other junior stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of December, March, June and
September in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Participating
Preferred Stock, in an amount per share (rounded to the nearest cent) equal to
the greater of (a) $1.00 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends and 100 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions, other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Participating Preferred Stock. In the event the Company
shall at any time after April 1, 1994 (the "Rights Declaration Date") declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or
2
<PAGE> 3
combination or consolidation of the outstanding shares of Common Stock (by
re-classification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount to which holders of shares of Participating Preferred Stock
were entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(b) The Company shall declare a dividend or distribution
on the Participating Preferred Stock as provided in
paragraph (a) of this Section immediately after it
declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of
Common Stock); provided that, in the event no
dividend or distribution shall have been declared an
the Common Stock during the period between any
Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a
dividend of $1.00 per share on the Participating
Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Participating Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Participating Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Participating
Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be not more than sixty days prior to
the date fixed for the payment thereof.
Section 3. VOTING RIGHTS. The holders of shares of Participating
Preferred Stock shall have the following voting rights:
(a) Each share of Participating Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Company.
(b) Except as otherwise provided herein, in the Company's Certificate
of Incorporation or by law, the holders of shares of Participating Preferred
Stock, the holders of shares of Common Stock, and the holders of shares of any
other capital stock of the Company
3
<PAGE> 4
having general voting rights, shall vote together as one class on all matters
submitted to a vote of stockholders of the Company.
(c) Except as otherwise set forth herein or in the Company's
Certificate of Incorporation, and except as otherwise provided by law, holders
of Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
Section 4. CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Participating Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Participating Preferred
Stock outstanding shall have been paid in full, the Company shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Participating Preferred Stock, except dividends paid ratably on the
Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) except as permitted in Section 4(a)(iv) below,
redeem or purchase or otherwise acquire for consideration shares of any
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Participating Preferred Stock,
provided that the Company may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for shares of any
stock of the Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Participating Preferred
Stock; or
(iv) purchase or otherwise acquire for consideration
any shares of Participating Preferred Stock, or any shares of stock
ranking on a parity with the Participating Preferred Stock, except in
accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in
good faith will result in fair and equitable treatment among the
respective series or classes.
4
<PAGE> 5
(b) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (a) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any shares of Participating Preferred
Stock purchased or otherwise acquired by the Company in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. The
Company shall cause all such shares upon their cancellation to be authorized but
unissued shares of Preferred Stock which may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Company, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Participating Preferred Stock unless, prior
thereto, the holders of shares of Participating Preferred Stock shall have
received per share, the greater of $100.00 or 100 times the payment made per
share of Common Stock, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment (the
"Liquidation Preference"). Following the payment of the full amount of the
Liquidation Preference, no additional distributions shall be made to the holders
of shares of Participating Preferred Stock, unless, prior thereto, the holders
of shares of common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in subparagraph C
below to reflect such events as stock dividends, and subdivisions, combinations
and consolidations with respect to the Common Stock) (such number in clause (ii)
being referred to as the "Adjustment Number"). Following the payment of the full
amount of the Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Participating Preferred Stock and Common Stock,
respectively, holders of Participating Preferred Stock and holders of shares of
Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number to 1
with respect to such Participating Preferred Stock and Common Stock, on a per
share basis, respectively.
(b) In the event there are not sufficient assets available to permit
payment in full of the Liquidation Preference and the liquidation preferences of
all other series of preferred stock, if any, which rank on a parity with the
Participating Preferred Stock, then such remaining assets shall be distributed
ratably to the holders of such parity shares in proportion to their respective
liquidation preferences. In the event there are not sufficient assets available
to permit payment in full of the Common Adjustment, then such remaining assets
shall be distributed ratably to the holders of Common Stock.
(c) In the event the Company shall at any time after the Rights
Declaration Date declare or pay any dividend on Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by re-classification or otherwise then by
payment of a dividend in shares of Common Stock) into a
5
<PAGE> 6
greater or lesser number of shares of Common Stock, then in each such case the
Adjustment Number in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that are
outstanding immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Company shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Participating Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is exchanged or changed.
In the event the Company shall at any time after the Rights Declaration Date
declare or pay any dividend on Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by re-classification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Participating
Preferred Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that are outstanding immediately prior to such event.
Section 8. REDEMPTION. The shares of Participating Preferred Stock
shall not be redeemable.
Section 9. RANKING. The Participating Preferred Stock shall rank junior
to all other series of the Company's Preferred Stock as to the payment of
dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.
Section 10. AMENDMENT. The Certificate of Incorporation of the Company
shall not be further amended in any manner which would materially alter or
change the powers, preferences or special rights of the Participating Preferred
Stock so as to affect them adversely without the affirmative vote of the holders
of a majority or more of the outstanding shares of Participating Preferred Stock
voting separately as a class.
Section 11. FRACTIONAL SHARES. Participating Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Participating Preferred Stock.
IN WITNESS WHEREOF, Spherion Corporation has caused this Restated
Certificate of Designation, Preferences and Rights of Participating Preferred
Stock to be executed by Roy G.
6
<PAGE> 7
Krause, its Executive Vice-President and Chief Financial Officer, and attested
by its Secretary this 7th day of July, 2000.
SPHERION CORPORATION
By: /s/ Roy G. Krause
----------------------------------
Name: Roy G. Krause
--------------------------------
Title: Executive Vice-President and
Chief Financial Officer
-------------------------------
ATTEST:
/s/ Lisa G. Iglesias
----------------------------------
Lisa G. Iglesias, Secretary
7
