EXHIBIT 10.8
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OMNIBUS AMENDMENT NO. 2
DATED AS OF JANUARY 18, 2000
BY AND AMONG
OLSTEN CORPORATION
OLSTEN HEALTH SERVICES HOLDING CORP.
GENTIVA HEALTH SERVICES, INC.
ADECCO SA
AND
STAFFING ACQUISITION CORPORATION
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OMNIBUS AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇ (this "Omnibus Amendment") dated as of January 18,
2000, by and among Olsten Corporation, a Delaware corporation ("Olsten"), Olsten
Health Services Holding Corp., a Delaware corporation ("OHS Holding Corp."),
Gentiva Health Services, Inc., a Delaware corporation ("Gentiva"), Adecco SA, a
societe anonyme organized under the laws of Switzerland ("Adecco"), and Staffing
Acquisition Corporation, a Delaware corporation ("Merger Sub") to each of the
Separation Agreement dated as of August 17, 1999, by and among Olsten, Aaronco
Corp., a Delaware corporation ("OHS") and Adecco (the "Separation Agreement");
the Agreement and Plan of Merger dated as of August 17, 1999 by and among
Adecco, Merger Sub and Olsten (the "Merger Agreement"), the Employee Benefits
Allocation Agreement dated as of August 17, 1999, by and between Olsten and OHS
(the "Employee Benefits Allocation Agreement"); and the Tax Sharing Agreement
dated as of August 17, 1999, by and among Olsten, OHS and Adecco (the "Tax
Sharing Agreement" and, collectively with the Merger Agreement, the Separation
Agreement and the Employee Benefits Allocation Agreement, as certain of the
agreements were previously amended by Omnibus Amendment No. 1 dated as of
October 7, 1999, the "Agreements"). Capitalized terms not otherwise defined in
this Omnibus Amendment have the meanings specified in the Separation Agreement.
W I T N E S S E T H
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1 ASSIGNMENT TO GENTIVA.
1.1 OHS Holding Corp. hereby transfers, conveys, assigns and delivers to
Gentiva all of OHS Holding Corp.'s rights and interests in the Agreements.
1.2 Gentiva hereby irrevocably and unconditionally assumes, and undertakes
to pay, honor, discharge and perform when due or cause to be paid, honored,
discharged or performed when due, all of the debts, liabilities, obligations,
commitments and responsibilities of any nature of OHS Holding Corp. pursuant to
the Agreements.
1.3 Any and all references to OHS Holding Corp. or OHS in the Agreements
shall, from and after the date hereof, be deemed to be references to Gentiva
and, therefore, shall no longer be references to OHS Holding Corp. or OHS, as
the case may be.
2 AMENDMENTS TO MERGER AGREEMENT. The Merger Agreement is hereby amended
as follows:
2.1 The sixth recital (beginning "Whereas, the Board of Directors of Adecco
. . .") is amended by deleting the language in clause (ii) that reads: "the
increase in the size of the Board of Directors of Adecco and the election of new
directors as contemplated by Section 5.13" and substituting therefor the
following: "the election of ▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Board of Directors of Adecco".
2.2 Section 2.01(a) is amended by:
2.2.1 Deleting clause (x) in its entirety and substituting the following:
"(x) .25 of a validly issued, fully paid and nonassessable share (the "Split-Off
Consideration") of common stock of OHS (the "OHS Common Stock")"; and
2.2.2 Changing the date of the Deposit Agreement to December 8, 1999.
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2.3 Section 2.01(d) is amended by deleting the last paragraph in its
entirety and substituting the following:
"The 'Cash Election Number' shall be equal to (i) 50% of the number of
shares of Olsten Common Stock outstanding as of immediately prior to the
Effective Time (excluding from outstanding for purposes of the calculation
the number of shares of Olsten Common Stock, if any, owned by Olsten as
treasury stock or owned by Adecco, Merger Sub or any of their wholly-owned
Subsidiaries or by any wholly-owned Subsidiary of Olsten), minus (ii) the
number of shares of Olsten Common Stock represented by Dissenting Shares (as
defined below)."
2.4 Section 2.01(e) is amended by:
2.4.1 Adding the following after the phrase "(i) a number of shares of
Adecco ADSs equal to" in the first sentence of the first paragraph: "the product
of (x) the Stock Consideration and (y)"; and
2.4.2 Deleting the last paragraph in its entirety and substituting the
following:
"The 'Stock Election Number' shall be equal to 50% of the number of shares
of Olsten Common Stock outstanding as of immediately prior to the Effective
Time (excluding from outstanding for purposes of the calculation the number
of shares of Olsten Common Stock, if any, owned by Olsten as treasury stock
or owned by Adecco, Merger Sub or any of their wholly-owned subsidiaries or
by any wholly-owned Subsidiary of Olsten)."
2.5 Section 2.02(c) is amended by deleting the words "Effective Time" each
time it appears and substituting therefor the following: "Olsten Special Meeting
date".
2.6 Section 2.04(a) is amended by deleting the language in the second
sentence that reads: "At least one business day prior to the Effective Time,"
and substituting therefor the following: "Prior to the Effective Time,".
2.7 Section 2.05(b) is amended by:
2.7.1 inserting "and" between "Securities" and "Exchange Commission" in the
penultimate sentence; and
2.7.2 deleting the last sentence in its entirety and substituting the
following:
"If appropriate, the exercise price of the Olsten Options, as adjusted,
shall be converted into CHF at the Federal Reserve's Noon Buying Rate for
U.S. Dollars and CHF on the date on which the Effective Time occurs."
2.8 Section 2.05(i) is amended by deleting the second sentence and
substituting therefor the following:
"Adecco shall take all action necessary to reserve for issuance or otherwise
make available a sufficient number of Adecco ADSs for delivery to holders of
Quantum Debt surrendering the instruments evidencing such Quantum Debt, if
OHS shall have used all reasonable efforts to acquire Adecco ADSs (or Adecco
common stock) to satisfy such obligations to the holder of Quantum Debt
(provided that OHS shall not be required to pay more than fair market value
therefor), and nevertheless shall have failed so to acquire such Adecco
ADSs, upon the request of OHS and upon payment by OHS of the fair market
value of such Adecco ADSs, shall provide such Adecco ADSs to OHS in
satisfaction of such exchange obligation."
2.9 Section 2.06 is amended by deleting in its entirety and substituting the
following:
"Section 2.06 FRACTIONAL SHARES. (a) Notwithstanding any other provision of
this Agreement, each holder of shares of Olsten Common Stock who upon
surrender of all of the Certificates of such holder would be entitled to
receive a fraction of an Adecco ADS or Adecco Common Stock shall
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receive from the Exchange Agent, in lieu of such fractional share, cash
payment representing such holder's proportionate interest in the proceeds
from the sale by the Exchange Agent in one or more transactions of the
number of Adecco ADSs (or shares of Adecco Common Stock represented by such
Adecco ADSs) over the aggregate number of whole Adecco ADSs to be
distributed to the holders of Olsten Common Stock pursuant to Section 2.04
hereof. The sale of such excess Adecco ADSs (or shares of Adecco Common
Stock represented by such excess Adecco ADSs) by the Exchange Agent, as
agent for the holders that would otherwise receive fractional shares, shall
be executed in such amounts and manner as the Exchange Agent may, in its
sole discretion, determine. Until the proceeds of such sale or sales have
been distributed to the holders of Olsten Common Stock who would be
otherwise entitled to receive fractional shares of Adecco ADS or Adecco
Common Stock, the Exchange Agent shall hold such proceeds in trust for such
holders. Without duplication and unless the context otherwise clearly
requires, all references in this Agreement to Adecco ADSs or Adecco Common
Stock to be issued as Stock Consideration shall be deemed to include cash in
lieu of fractional shares of Adecco ADSs or Adecco Common Stock, as
applicable, payable pursuant to this Section 2.06.
(b) Notwithstanding any other provision of this Agreement, each holder
of shares of Olsten Common Stock who upon surrender of all of the
Certificates of such holder would be entitled to receive fractional shares
of OHS Common Stock shall receive, in lieu of such fractional shares, cash
in an amount equal to such fraction multiplied by the Market Value of OHS
Common Stock. "Market Value of OHS Common Stock" shall mean the last
reported sale price of OHS Common Stock as reported on a national securities
exchange or NASDAQ on the first full trading day following the Effective
Time. Without duplication and unless the context otherwise clearly requires,
all references in this Agreement to OHS Common Stock to be issued as
Split-Off Consideration shall be deemed to include any cash in lieu of
fractional shares of OHS Common Stock payable pursuant to this
Section 2.06(b)."
2.10 Section 2.07(a) is amended by adding to the penultimate sentence after
the words "Closing Consideration" the following:
"(with the holder being deemed to have made a Cash Election),"
2.11 Section 5.08 is amended to add the following at the end:
"provided that Adecco shall pay OHS for aggregate out-of-pocket expenses in
the amount of $135,000 to implement the changes contemplated in the
Contribution Agreement (as defined in the Separation Agreement)."
2.12 A new Section 5.19 is hereby added immediately following Section 5.18
as follows:
"Section 5.19 ADECCO LOAN.
(a) DEFINITIONS.
"Incurrence Date" means January 18, 2000 or such other business day as
Adecco, Inc., Adecco and Olsten shall agree upon in writing.
"Promissory Note" means the promissory note to be issued by Olsten to
Adecco, Inc. on the Incurrence Date, substantially in the form attached hereto
as Exhibit E, in the principal amount of $30 million.
"Term Loan" means a term loan in the amount of $30 million that may be made
by Adecco, Inc., a Delaware corporation, to Olsten, subject to the prior
satisfaction of the conditions set forth in Section 5.19(c) hereof, on the
Incurrence Date.
(b) LOAN COMMITMENT. Subject to and upon the conditions set forth in
Section 5.19(c) hereof, Adecco agrees to cause Adecco, Inc. to make the Term
Loan to Olsten on the Incurrence Date, which
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Term Loan: (x) shall be incurred pursuant to a single drawing on the Incurrence
Date and (y) shall be denominated in U.S. dollars. Once repaid, the Term Loan
incurred hereunder may not be reborrowed.
(c) CONDITIONS.
The obligations of Adecco and Adecco, Inc. to Olsten with respect to
Adecco, Inc.'s commitment to make the Term Loan shall be subject to the
satisfaction of the following conditions prior to the disbursement of funds:
(i) No event shall have occurred and be continuing that would
constitute a default, or with the passage of time or the giving of notice or
both, would constitute a default under the Promissory Note or would entitle
Adecco, Inc. to accelerate a balance due, if any, under the Promissory Note;
(ii) On or prior to the Incurrence Date, Olsten shall have issued and
delivered to Adecco, Inc., and Adecco, Inc. shall have received from Olsten,
the Promissory Note;
(iii) On or prior to the Incurrence Date, Olsten and OHS shall have
entered into the Contribution Agreement;
(iv) On the Incurrence Date, Adecco shall have received a certificate,
dated the Incurrence Date and signed by each of the Chief Executive Officer
and the Chief Financial Officer of Olsten, certifying the following:
(1) Olsten has all requisite corporate or other power and authority
to issue, execute, sell and deliver the Promissory Note and to perform
its obligations thereunder;
(2) The Promissory Note (x) has been duly and validly authorized by
Olsten for issuance and delivery to Adecco, Inc. on the Incurrence Date,
(y) has been duly executed and delivered by Olsten and (z) is the legal,
valid and binding obligation of Olsten, enforceable against Olsten in
accordance with its terms;
(3) The issuance of the Promissory Note and the incurrence of the
Term Loan will not (x) violate Olsten's charter or bylaws or other
organizational documents, (y) result in the default in the performance of
any bond, debenture, note, indenture, mortgage, deed of trust or other
agreement or instrument to which it is a party or by which it is bound or
to which any of its properties is subject or (z) violate any local,
state, federal or foreign law, statute, ordinance, rule, regulation,
requirement, judgment or court decree; and
(4) The conditions set forth in Sections 5.19(c)(i)-(iii) hereof
have been satisfied; and
(v) Adecco shall have received copies of such documents and papers as
it may reasonably request in connection with the Term Loan.
2.13 Cross references to terms defined in Section 5.19 are added to
Section 11.01, and the Promissory Note which is Exhibit A to this Omnibus
Amendment is added as Exhibit E to the Merger Agreement.
2.14 Section 7.03 of the Merger Agreement will be amended to read as
follows:
"Section 7.03 MATERIAL ADVERSE EFFECT. No Olsten Material Adverse Effect
shall have occurred since the date of this Agreement and be continuing;
provided that this Section 7.03 shall cease to be a condition to the Closing
from and after January 31, 2000."
2.15 Section 8.03 of the Merger Agreement will be amended to read as
follows:
"Section 8.03 MATERIAL ADVERSE EFFECT. No Adecco Material Adverse Effect
shall have occurred since the date of this Agreement and be continuing;
provided that this Section 8.03 shall cease to be a condition to the Closing
from and after January 31, 2000."
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2.16 Section 10.01(b) is amended by changing references to the date
"March 31, 2000" to "May 31, 2000".
3 AMENDMENTS TO SEPARATION AGREEMENT. The Separation Agreement is hereby
amended as follows:
3.1 Section 1.01 is amended by inserting in alphabetical order the
following:
"CONTRIBUTION AGREEMENT" means the Contribution and Sale Agreement dated as
of January 18, 2000 by and among Olsten, Gentiva Health Services, Inc. and
DNH Medical Management, Inc. in the form attached hereto as Exhibit C.
"GENTIVA" means Gentiva Health Services, Inc., a Delaware corporation which
has assumed the obligations of OHS under this Agreement.
3.2 Section 2.02 is amended by deleting it in its entirety and substituting
the following:
"Section 2.02 CONSIDERATION FOR TRANSFERRED ASSETS. In full consideration
for the Transferred OHS Assets and in accordance with the Contribution
Agreement, (i) prior to the Effective Time, OHS shall issue to Olsten a
number of shares of OHS Common Stock that, together with the shares of OHS
Common Stock held by Olsten prior to that date, shall be sufficient to
enable Olsten and OHS to perform their obligations under the Merger
Agreement, and (ii) OHS shall assume the Assumed OHS Liabilities. In full
consideration of the Transferred Olsten Assets, Olsten shall pay, perform
and discharge the Olsten Liabilities."
3.3 Section 2.03(a) is amended by deleting the language "simultaneously with
the transfer of Assets pursuant to Section 2.01,".
3.4 Section 2.05(b)(v) is amended to read in its entirety as follows:
"(v) The outstanding OHS Common Stock, and the OHS Common Stock to be issued
pursuant to Section 2.02, has been duly authorized and is, or when issued
will be, validly issued, fully paid, nonassessable, and free of preemptive
rights. The Series A Cumulative Non-Voting Redeemable Preferred Stock of
Gentiva to be issued pursuant to the Contribution Agreement has been duly
authorized and when issued will be validly issued, fully paid,
nonassessable, and free of preemptive rights."
3.5 Section 2.08 is amended by:
3.5.1 Deleting all references to "Closing Date" in clause (a) and
substituting therefor "True-Up Date";
3.5.2 Deleting clause (b) in its entirety; and
3.5.3 Adding the following as a new clause (d):
"(d) Without limiting the foregoing, prior to the Effective Time, Olsten and
Gentiva shall enter into and each shall fully perform its respective obligations
under the Contribution Agreement."
3.6 Section 2.09 is amended by:
3.6.1 Deleting clause (c)(ii) in its entirety and substituting the
following:
"(ii) less than $750 million, then the New Intercompany Account shall
reflect a payable by Olsten to OHS equal to the amount of such shortfall
(the "True-Up Amount")":
3.6.2 Deleting clause (d) in its entirety and substituting the following:
"No later than the close of business on the business day following the
Effective Time, the Closing Intercompany Balance shall be settled by OHS or
Olsten, as the case may be, delivering to the
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other a cash payment in an amount equal to the amount owing by such party to
the other, if any, plus applicable accrued and unpaid interest. At the
Effective Time, the True-Up Intercompany Balance shall be contributed to the
capital of OHS."
3.6.3 Adding the following as a new clause (f):
"(f) Olsten represents that, at the close of business on the True-Up Date,
the consolidated indebtedness and cash of Olsten and the Retained
Subsidiaries were $741 million and $30 million, respectively. Olsten
represents that at the close of business on the True-Up Date Net Debt was
$721 million and the True-Up Amount was $29 million. To the extent that
Olsten or any Retained Subsidiary shall after the True-Up Date advance funds
to or on behalf of, or otherwise, actually or contingently, become a
creditor of, OHS or any of the Health Subsidiaries (collectively, an
"Advance"), such Advance shall be reflected in the New Intercompany Account
as a payable in the amount of such Advance by Olsten to OHS. For purposes of
determining the balance at any time of the new Intercompany Account, which
earns interest, all receivables and payables shall be netted. If after
making an Advance, the aggregate amount of Advances after the True-Up Date
would exceed the True-Up Amount, such Advance may be made only in the
ordinary course of business; PROVIDED, HOWEVER, that an Advance may be made
only with the prior written consent of Adecco if, after making such Advance,
the aggregate amount of Advances after the True-Up Date would exceed the
True-Up Amount by $50 million or more. If the aggregate amount of Advances
made after the True-Up Date exceeds the True-Up Amount, the amount of such
excess Advances shall bear interest based on the average daily balance of
Advances at the rate which The Chase Manhattan Bank announces from time to
time as its prime lending rate."
3.64 Adding the following as a new clause (g):
"(g) The True-Up Amount shall bear interest from the True-Up Date to the
earlier of (i) the Effective Time and (ii) the date that Advances made after
the True-Up Date exceed the True-Up Amount, at 6% per annum on the average
daily balance on the excess of the True-Up amount over the Advances."
3.7 A new Section 4.04(g) is hereby added immediately following
Section 4.04(f) as follows:
"(g) For purposes of Article IV, the Shareholder Liabilities shall be
treated as a Third-Party Claim as to which OHS has elected to assume the
defense. The attorneys representing the defendants in the lawsuits
identified in the definition of Shareholder Liabilities set forth in
Section 1.01 shall be treated as attorneys employed by OHS and deemed
satisfactory to Olsten."
3.8 Section 7.02 is amended to read in its entirety as follows:
"Section 7.02. AMENDMENT. Neither this Agreement, nor any agreement attached
as an Exhibit when executed, may be amended except by an instrument in
writing signed on behalf of Olsten, OHS, and Adecco."
3.9 Section 7.04 is amended by adding the following as the last sentence:
"The foregoing notwithstanding Adecco shall pay OHS for aggregate
out-of-pocket expenses in the amount of $135,000 to implement the changes
contemplated by the Contribution Agreement."
3.10 Schedule 1 shall be amended to include Olsten Healthcare Holding Corp.
as a Health Subsidiary.
3.11 Exhibit C shall be added to the Separation Agreement, which shall be
the form of Contribution Agreement attached as Exhibit B to this Omnibus
Amendment.
4 AMENDMENTS TO TAX SHARING AGREEMENT. The Tax Sharing Agreement attached
hereto as Exhibit C is substituted for the Tax Sharing Agreement.
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5 CONDITIONS TO EFFECTIVENESS.
This Omnibus Amendment shall become effective as of the date when, and only
when, (a) Adecco and Olsten shall have received counterparts of this Omnibus
Amendment and the Contribution Agreement executed by the other parties hereto
and thereto, (b) Adecco shall have received the Promissory Note, executed by
Olsten and (c) Olsten shall have received the proceeds from the Term Loan.
6 MISCELLANEOUS.
6.1 Any and all references to the Agreements shall refer to the Agreements
as amended by this Omnibus Amendment.
6.2 The execution, delivery and/or effectiveness of this Omnibus Amendment
shall not, except as expressly provided herein, amend, revise, add to or modify
any provision of the Agreements or operate as a waiver of any right, power or
remedy of any party under any of the Agreements, nor constitute a waiver of any
provision of any of the Agreements.
6.3 This Omnibus Amendment shall be governed by and construed in accordance
with, the laws of the State of Delaware without giving effect to any provision
thereof relating to conflicts of law.
6.4 This Omnibus Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Omnibus Amendment by telecopier shall be effective as
delivery of a manually executed counterpart of this Omnibus Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Omnibus Amendment
No. 2 to be executed by their respective officers thereunto duly authorized, as
of the date first above written.
OLSTEN CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
GENTIVA HEALTH SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
ADECCO SA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
OLSTEN HEALTH SERVICES HOLDING CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
STAFFING ACQUISITION CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
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EXHIBIT A TO
OMNIBUS AMENDMENT NO. 2
[FORM OF PROMISSORY NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAW.
U.S. $30,000,000.00 Dated: January 18, 2000
1 PRINCIPAL.
FOR VALUE RECEIVED, the undersigned, OLSTEN CORPORATION., a Delaware
corporation (the "MAKER"), HEREBY PROMISES TO PAY to ADECCO, INC., a Delaware
corporation (the "HOLDER"), the aggregate principal sum of thirty million U.S.
dollars (U.S. $30,000,000.00) (the "PRINCIPAL"), plus interest on the unpaid
Principal from January 18, 2000 (the "INTEREST") at the Prime Rate (as defined)
per annum (computed on the basis of a year of 365 or 366 days, as the case may
be, for the actual number of days elapsed), upon the terms and subject to the
conditions provided for in this Note.
2 PAYMENTS.
2.1 PAYMENT OF INTEREST. The Maker shall pay Interest quarterly on
March 31, June 30 and September 30 and December 31 of each year (each an
"INTEREST PAYMENT DATE"), commencing on June 30, 2000. Interest on this Note
shall accrue from the most recent date to which Interest has been paid or, if no
interest has been paid, from January 18, 2000. The Company shall pay interest on
overdue principal from time to time on demand at a rate that is 1% per annum in
excess of the rate then in effect.
2.2 PRINCIPAL; FINAL MATURITY. All unpaid principal and accrued and unpaid
Interest under this Note shall be due and payable in full on the earlier of
(i) the Effective Time (as defined) and (ii) 90 days after the Notice Date (as
defined) (such earlier date, the "MATURITY DATE").
2.3 PAYMENT DATE. Any payments called for in Sections 2.1 and 2.2 or
otherwise under this Note shall be made on the respective days designated or, if
not a business day, the first business day thereafter. As used herein, "BUSINESS
DAY" means a day other than a Saturday, Sunday or a day on which banks are
authorized to close in New York City.
2.4 ACCELERATION. In the event of (i) any default in payment of Interest
due hereunder which default remains uncured for ten (10) days after written
notice thereof from the Holder to the Maker, (ii) any default in payment of the
principal when the same becomes due and payable at the Maturity Date, (iii) any
failure by any party to the Contribution and Sale Agreement (as defined) to
observe or perform in any material respect any covenant, representation, or
other agreement in the Contribution and Sale Agreement, (iv) any failure by the
Maker or any of its subsidiaries parties to the Separation Agreement (as
defined) to observe or perform in any material respect any covenant,
representation, or other agreement in the Separation Agreement or the Merger
Agreement, (v) a default under any instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness (as defined) or any
guarantee of Indebtedness by the Maker or any of its Subsidiaries (as defined),
whether such Indebtedness exists on the date of the issuance of this Note, or is
created after the date of the issuance of this Note, which default results or,
with the passage of time or the giving of notice or both, may result in the
acceleration of such Indebtedness prior to its express maturity and, in each
case, the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness the maturity of which has been or may be
so accelerated, aggregates $5,000,000 or more, (vi) a final judgment or final
judgments for the payment of money are entered by a court or courts of competent
jurisdiction against the Maker or any of its Subsidiaries and such judgment or
judgments remain undischarged for a period (during which execution shall not be
effectively stayed) of 30 days, provided that the aggregate of all such
undischarged judgments exceeds $1,000,000 of more,
(vii) the Maker or any of its Subsidiaries (a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an involuntary
case, (c) consents to the appointment of a custodian of it or for all or
substantially all of its property, (d) makes a general assignment for the
benefit of its creditors, or (e) generally is not paying its debts as they
become due, in each case, pursuant to or within the meaning of Bankruptcy Law
(as defined), (viii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law, which order or decree remains unstayed and
in effect for 30 consecutive days, that (a) is for relief against the Maker
or any of its Subsidiaries in an involuntary case, (b) appoints a custodian
of the Maker or any of its Subsidiaries or for all or substantially all of
the property of the Maker or any of its Subsidiaries or (c) orders the
liquidation of the Maker or any of its Subsidiaries, or (ix) the Maker fails
to comply with any of the provisions of Section 6 hereof, the Holder may, at
his sole discretion, declare this Note in default and, in such event, all
sums of accrued but unpaid Interest and principal shall be accelerated and be
immediately due and payable. Upon a default, Interest shall continue to
accrue at the rate provided for herein on all sums of accrued but unpaid
Interest, together with unpaid principal, until all such sums are paid.
2.5 ORDERING OF PAYMENTS. All payments hereunder shall be credited
(i) first to the payment of costs and expenses to the extent provided for under
Section 5, (2) second to the accrued but unpaid Interest, and (3) third to the
Principal.
3 MANNER OF PAYMENT.
3.1 Each payment under this Note shall be payable to the Holder in lawful
currency of the United States of America and sent to the following address:
Attention: ▇▇▇▇ ▇▇▇▇▇
Adecco, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such address as the Holder shall notify the Maker; PROVIDED, that, such
change of address notice is made in accordance with Section 9 and is received by
the Maker not less than five (5) business days prior to the scheduled date of a
payment.
3.2 Notwithstanding the provisions of Section 3.1, in the event the Holder
provides the Maker with wire transfer instruction not less than five
(5) business days prior to the scheduled date of payment, the Maker shall be
required to make such payment to the Holder by wire transfer of immediately
available funds.
4 PREPAYMENT.
At any time or from time to time the Maker may prepay all or any portion of
the principal amount of this Note, together with Interest accrued but unpaid,
without penalty or premium, with prior written notice to the Holder, which
notice shall specify the date and amount of such prepayment (the "PREPAYMENT
NOTICE"). The Prepayment Notice shall set forth a proposed prepayment date which
shall be not less than five (5) nor more than thirty (30) days after the date of
the Prepayment Notice. A Prepayment Notice shall create an obligation of the
Maker to pay the amount specified on the date specified in such Prepayment
Notice. The Maker may prepay with or without prior notice all or any portion of
accrued Interest at any time without premium or penalty, from time to time.
Any prepayment permitted pursuant to this Note shall be made as provided in
Section 3. Immediately upon any prepayment of this Note as set forth above, the
Holder shall surrender this Note to the Maker for (i) cancellation in the case
of full prepayment or (ii) appropriate notation on, or replacement of, the Note
in the case of a partial prepayment. If the Note is not surrendered upon
prepayment in full of this Promissory Note, such notation shall be made in the
books and records of the Maker.
A-2
5 COST INCURRED BY HOLDER.
If any default occurs in any payment due under this Note, the Maker shall
pay all reasonable costs and expenses, including attorneys' fees, incurred by
the Holder in collecting or attempting to collect the indebtedness under this
Note, whether or not any action or proceeding is commenced.
6 WRITTEN CONSENT.
The Maker shall not, and shall not permit any of its Subsidiaries, to incur
any (i) Attributable Debt in respect of any sale and lease back transaction,
(ii) Hedging Obligations or (iii) Capital Lease Obligations, in each case,
without the prior written consent of the Holder.
7 SEVERABILITY.
In the event that any one or more provisions of this Note shall be held to
be illegal, invalid or otherwise unenforceable, the same shall not affect any
other provision of this Note and the remaining provisions of this Note shall
remain in full force and effect.
8 CERTAIN DEFINITIONS.
In this Note:
"ATTRIBUTABLE DEBT" shall mean, in respect of a sale and leaseback
transaction, at the time of determination, the present value of the obligation
of the lessee for net rental payments during the remaining term of the lease
included in such sale and leaseback transaction including any period for which
such lease has been extended or may, at the option of the lessor, be extended.
Such present value shall be calculated using a discount rate equal to the rate
of interest implicit in such transaction, determined in accordance with GAAP.
"BANKRUPTCY LAW" shall mean Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"BUSINESS DAY" shall have the meaning set forth in Section 2.3.
"CAPITAL LEASE OBLIGATIONS" shall mean, at any time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" shall mean (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CONTRIBUTION AND SALE AGREEMENT" shall mean that certain Contribution and
Sale Agreement, dated as of January 18, 2000, by and among the Maker, Gentiva
Health Services, Inc., a Delaware corporation, and DNH Medical
Management, Inc., a California corporation doing business as The Camden Group,
as such agreement may be amended from time to time.
"EFFECTIVE TIME" shall have the meaning assigned to it in the Merger
Agreement.
"GAAP" shall mean generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
A-3
"HEDGING OBLIGATIONS" shall mean, with respect to any specified Person, the
obligations of such Person under (i) interest or currency swap agreements,
interest rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates or currency exchange rates.
"HOLDER" shall have the meaning set forth in Section 1.
"INDEBTEDNESS" shall mean, with respect to any specified Person, any
indebtedness of such Person, whether of not contingent, in respect of
(i) borrowed money, (ii) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof), (iii) banker's acceptances, (iv) the balance deferred and unpaid of
the purchase price of any property, except any such balance that constitutes an
accrued expense or trade payable, (v) indebtedness described in clauses
(i)-(iv) of this definition of any other person secured by a Lien on any asset
of the specified Person (whether or not such Indebtedness is assumed by the
specified Person) and (vi) guarantee by the specified Person of any indebtedness
described in clauses (i)-(v) of this definition of any other Person.
"INTEREST" shall have the meaning set forth in Section 1.
"INTEREST PAYMENT DATE" shall have the meaning set forth in Section 2.1.
"MAKER" shall have the meaning set forth in Section 1.
"MATURITY DATE" shall have the meaning set forth in Section 2.2.
"MERGER AGREEMENT" shall mean that certain Agreement and Plan of Merger,
dated August 17, 1999, by and among the Maker, Adecco SA, a societe anonyme
organized in Switzerland, and Staffing Acquisition Corporation, a Delaware
corporation, as amended from time to time.
"NOTICE DATE" shall mean the first date on which any notice of termination
or abandonment is delivered by any party or parties to the Merger Agreement
pursuant to Article X of the Merger Agreement.
"PERSON" shall mean any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PREPAYMENT NOTICE" shall have the meaning set forth in Section 4.
"PRIME RATE" shall mean the rate which The Chase Manhattan Bank announces
from time to time as its prime lending rate, the Prime Rate to change when and
as such prime lending rate changes.
"PRINCIPAL" shall have the meaning set forth in Section 1.
"SEPARATION AGREEMENT" shall mean that certain Separation Agreement, dated
August 17, 1999, by and among the Maker, Adecco SA and Aaronco Corp, a Delaware
corporation, as amended from time to time.
"SUBSIDIARY" shall mean, with respect to any specified Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, mangers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof and (ii) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of such Person
or (b) the only general partners of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof).
A-4
9 NOTICES.
Other than as the Maker and the Holder may otherwise agree in writing,
notices sent by the Maker or the Holder hereunder shall be made in writing as
follows:
If to the Maker, to:
Olsten Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Holder, to:
Adecco, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇.
10 HEADINGS.
Headings used in this Note are inserted for convenience only and shall not
be deemed to constitute a part hereof.
11 GOVERNING LAW.
THIS NOTE IS AND SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS.
12 TRANSFERABILITY.
This Note shall be binding upon and shall inure to the benefit of the Holder
and the Maker and their respective heirs and permitted successors and assigns,
if any.
A-5
13 WAIVER OF PRESENTMENT, ETC.
Except as otherwise provided herein, presentment, demand, protest, notice of
dishonor and all other notices are hereby expressly waived by the Maker.
14 USURY.
Nothing contained in this Note shall be deemed to establish or require the
payment of a rate of interest in excess of the maximum rate legally enforceable.
If the rate of interest called for under this Note at any time exceeds the
maximum rate legally enforceable, the rate of interest required to be paid
hereunder shall be automatically reduced to the maximum rate legally
enforceable. If such interest rate is so reduced and thereafter the maximum rate
legally enforceable is increased, the rate of interest required to be paid
hereunder shall be automatically increased to the lesser of the maximum rate
legally enforceable and the rate otherwise provided for in this Note.
15 WAIVER.
No waiver or modification of any of the terms of this Note shall be valid or
binding unless set forth in a writing specifically referring to this Note and
signed by a duly authorized officer of the Maker or the Holder, and then only to
the extent specifically set forth therein. None of the provisions of this Note
and none of the Holder's rights or remedies under this Note on account of any
past or future defaults shall be deemed to have been waived by the Holder's
acceptance of any past due installments or by indulgence granted by the Holder
to the Maker.
(Signature page follows)
A-6
IN WITNESS WHEREOF, this Promissory Note has been duly executed as of the
first date set forth above.
OLSTEN CORPORATION
By:
-----------------------------------------
Name:
Title:
A-7
EXHIBIT B TO
OMNIBUS AMENDMENT
[FORM OF CONTRIBUTION AND SALE AGREEMENT]
This Contribution and Sale Agreement, dated as of January 18, 2000 (the
"Agreement"), is entered into by and among Olsten Corporation, a Delaware
corporation ("Olsten"), Gentiva Health Services, Inc., a Delaware Corporation
("Gentiva") and DNH Medical Management, Inc., a California corporation doing
business as The Camden Group ("Camden").
RECITALS
A. WHEREAS, Olsten and Adecco SA, ("Adecco") a societe anonyme organized in
Switzerland, entered into an Agreement and Plan of Merger, dated August 17,
1999, as subsequently amended (the "Merger Agreement").
B. WHEREAS, Olsten, Gentiva (formerly named Aaronco Corp.) and Adecco
entered into a Separation Agreement, dated August 17, 1999, as subsequently
amended (the "Separation Agreement").
C. WHEREAS, Olsten owns 100 shares of common stock of Olsten Health Services
Holding Corp. ("OHS"), a Delaware corporation, representing all of the shares of
common stock of OHS issued and outstanding as of the date hereof.
D. WHEREAS, the Merger Agreement and the Separation Agreement contemplate
that the health service businesses of Olsten and it subsidiaries will be
restructured and separated from the other business of Olsten and its
subsidiaries and transferred to OHS prior to the issuance of all issued and
outstanding common stock of OHS to Olsten's shareholders, and the parties hereto
desire to specify in greater detail the manner in which this restructuring shall
occur.
E. WHEREAS, Olsten and Gentiva desire, on the terms and conditions set forth
in this Agreement, to cause all of the shares of common stock of OHS owned by
Olsten to be conveyed and transferred to Gentiva on the Contribution Date (as
defined below) in exchange and consideration for (i) the issuance and conveyance
on the Contribution Date of 100 shares of common stock of Gentiva representing,
together with the shares of common stock of Gentiva then owned by Olsten, all of
the shares of common stock of Gentiva issued and outstanding following such
exchange and (ii) a cash payment of $1,000.00 to Olsten on the earlier of (a) a
date agreed to in writing by each of Olsten and Adecco or (b) the date of the
special meeting of the stockholders of Olsten to vote on the approval of, among
other things, the Merger Agreement (such earlier date, the "Contribution Date").
F. WHEREAS, Gentiva desires to retain Camden's services as a consultant in
the future, pursuant to the terms of a consulting agreement, substantially in
the form attached hereto as Exhibit A, to be entered into by and between Camden
and Gentiva on the date hereof.
G. WHEREAS, Camden and Gentiva have agreed that in partial payment for
services to be provided in the future, Camden, on the Contribution Date, will
purchase 100 shares of Series A Cumulative Non-Voting Redeemable Preferred Stock
of Gentiva (the "Preferred Shares"), as authorized and designated pursuant to
the Certificate of Designations of the Preferred Stock, to be filed on or prior
to the Contribution Date with the Secretary of State of the State of Delaware,
substantially in the form attached hereto as Exhibit B, in consideration for
(i) services to be provided by Camden as a consultant to Gentiva after the
Contribution Date and (ii) a cash payment of $1.00.
H. WHEREAS, parties hereto desire, for other good and valid business and
financial purposes, to effectuate the transactions described herein.
AGREEMENT
In consideration of the recitals and the mutual promises contained herein
and in connection with the transactions described in the Merger Agreement, the
parties agree as follows:
ARTICLE I
EXCHANGE OF STOCK
1.1 REPRESENTATIONS AND WARRANTIES OF OLSTEN.
(a) Olsten is the record and beneficial owner of 100 shares of common stock
of OHS (the "OHS Shares"), representing all of the issued and outstanding
shares of common stock of OHS, and has good and valid title to such
shares, free and clear of any liens, encumbrances, claims, restrictions
on transfer or security interests.
(b) Olsten has the full right, capacity and power to transfer the OHS Shares
to Gentiva in accordance with this Agreement, and upon such transfer, the
OHS Shares will be fully paid and non assessable.
1.2 REPRESENTATIONS AND WARRANTIES OF GENTIVA.
(a) The 100 shares of common stock of Gentiva (the "Gentiva Shares") to be
issued on the Contribution Date to Olsten have been duly authorized and,
when issued to Olsten in accordance with the terms of this Agreement,
will be duly authorized, validly issued, fully paid and non-assessable.
(b) Upon issuance of Gentiva Shares to Olsten in accordance with the terms
of this Agreement, the Gentiva Shares, together with the shares of common
stock of Gentiva then owned by Olsten, shall represent all of the shares
of common stock of Gentiva issued and outstanding.
1.3 EXCHANGE OF COMMON STOCK. Olsten hereby covenants to assign, transfer and
convey to Gentiva on the Contribution Date all of its right, title and
interest in the OHS Shares, which upon such issuance and conveyance, shall
represent all of the common stock of OHS then issued and outstanding (the
"Olsten Contribution"). As consideration therefor, Gentiva hereby covenants
to (i) issue and convey to Olsten the Gentiva Shares, which upon such
issuance and conveyance, shall represent, together with the shares of common
stock of Gentiva then owned by Olsten, all of the common stock of Gentiva
then issued and outstanding and (ii) make a cash payment of $1,000.00 to
Olsten, in each case, concurrently with the Olsten Contribution.
1.4 COVENANTS OF GENTIVA. Gentiva hereby covenants that for a period of two
years from the Effective Time (as such term is defined in the Merger
Agreement), without the prior written consent of Olsten, which consent shall
not be unreasonably withheld, it will not enter into any transaction, or
permit OHS to enter into any transaction, which (a) would involve the
liquidation or dissolution of Gentiva or OHS or (b) would have the effect of
causing OHS to cease to be a wholly owned direct subsidiary of Gentiva,
except for an arm's-length transfer or other disposition to an unrelated
party.
ARTICLE II
EXCHANGE OF PREFERRED SHARES FOR SERVICES
2.1 REPRESENTATION OF GENTIVA. The Preferred Shares have been duly authorized
and, when issued in accordance with the terms of this Agreement, will be
duly authorized, validly issued, fully paid and non-assessable.
2.2 REPRESENTATIONS OF CAMDEN.
(a) Camden represents that it will purchase the Preferred Shares pursuant to
this Agreement for its own account and not as nominee or agent for any
other person and not with a view to, or
B-2
for offer or sale in connection with, any distribution thereof (within
the meaning of the Securities Act of 1933, as amended (the "Securities
Act")) that would be in violation of the securities laws of the United
States of America or any state thereof or any other jurisdiction, without
prejudice, however, to Camden's right at all times to sell or otherwise
dispose of all or any part of the Preferred Shares pursuant to a
registration statement under the Securities Act, or pursuant to an
exemption from the registration requirements of the Securities Act,
subject to paragraph (c) of this Section 2.2.
(b) Camden further represents that it is knowledgeable, sophisticated and
experienced in business and financial matters; that it fully understands
the limitations on transfer respecting the Preferred Shares; that it is
able to bear the economic risk of its investment in the Preferred Shares
and is presently able to afford the complete loss of such investment;
that it is an "accredited investor" as defined in Regulation D
promulgated under the Securities Act; and that it has been afforded
access to information about Gentiva and Gentiva's financial condition,
results of operations, business, property, management and prospects
sufficient to enable it to evaluate its investment in the Preferred
Shares. Camden acknowledges that it has conducted its own analysis of
Gentiva's financial condition and other foregoing factors and that it has
not relied upon the analysis of any other person in determining to make
an investment in the Preferred Shares.
(c) Camden acknowledges that the Preferred Shares to be issued pursuant to
this Agreement have not been registered under the Securities Act or any
other applicable securities laws, are being issued and sold in a
transaction not requiring registration under the Securities Act and,
unless so registered, may not be offered, sold or otherwise transferred
except in compliance with the registration requirements of the Securities
Act or any other applicable securities law or pursuant to an exemption
therefrom or in a transaction not subject thereto and in each case in
compliance with the conditions for transfer set forth in paragraph (d) of
this Section 2.2.
(d) Camden understands that the certificates representing the Preferred
Shares to be issued pursuant to this Agreement will, so long as
appropriate, bear the following legend:
THE PREFERRED SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), THE
PREFERRED SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER'S COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED.
(e) Camden acknowledges that Gentiva shall be entitled to make a notation on
its records and give instructions to any transfer agent of the Preferred
Shares in order to implement the restrictions on transfer set forth in
this Agreement.
2.3 PURCHASE OF PREFERRED SHARES. Gentiva hereby covenants to issue to Camden on
the Contribution Date, and Camden hereby covenants to purchase from Gentiva
on the Contribution Date, the Preferred Shares in consideration for
(i) services to be provided by Camden as a consultant to Gentiva after the
Contribution Date and (ii) a cash payment of $1.00.
ARTICLE III
MISCELLANEOUS
3.1 AMENDMENT. This Agreement may not be amended except by an instrument in
writing signed on behalf of Olsten, Gentiva and Camden and, prior to the
Effective Time, Adecco.
B-3
3.2 WAIVER OF COMPLIANCE; CONSENTS. Rights under this Agreement may be waived
only by a written agreement signed by Olsten, Gentiva and Camden and, prior
to the Effective Time, Adecco. Any waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on behalf
of any party hereto, such consent shall be given in writing.
3.3 LEGAL ENFORCEABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Without prejudice to
any rights or remedies otherwise available to any party hereto, each party
hereto acknowledges that damages would be an inadequate remedy for any
breach of the provisions of this Agreement and agrees that the obligations
of the parties hereunder shall be specifically enforceable.
3.4 NOTICES. All notices and other communications hereunder shall be in writing
and shall be delivered personally, by next-day courier or mailed by
registered or certified mail (return receipt requested), first class postage
prepaid, or sent by facsimile, telegram or telex, to the parties at the
addresses specified below (or at such other address for a party as shall be
specified by like notice; PROVIDED that notices of a change of address shall
be effective only upon receipt thereof). Any such notice shall be effective
upon receipt, if personally delivered or telecommunicated, one day after
delivery to a courier for next-day delivery, or three days after mailing, if
deposited in the U.S. mail, first class postage prepaid.
If to Olsten prior to the Effective Time or to Gentiva prior to or after the
Effective Time, to:
Olsten Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
B-4
If to Gentiva after the Effective Time, to:
Gentiva Health Services, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Olsten after the Effective Time, to:
Adecco ▇▇
▇▇▇▇ Cheserex
Switzerland
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telecopy: 011 41 21 321 6688
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Camden, to:
The Camden Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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3.5 COUNTERPARTS. This Agreement may be executed in two or more counterparts
each of which shall be deemed an original, but all of which together shall
constitute but one and the same Agreement.
3.6 GOVERNING LAW. This Agreement shall be governed by the laws of the State of
Delaware (regardless of the laws that might otherwise govern under
applicable Delaware principles of conflicts of law) as to all matters,
including but not limited to matters of validity, construction, effect,
performance and remedies. Each of the parties hereto irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the
courts of the State of Delaware and of the United States of America located
in the State of Delaware (the "Delaware Courts") for any litigation arising
out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any litigation relating thereto except in
such courts), waives any objection to the laying of venue of any such
litigation in the Delaware Courts and agrees not to plead or claim in any
Delaware Court that such litigation brought therein has been brought in an
inconvenient forum. Each of the parties hereto hereby agrees to service of
process in any litigation arising out of or relating to this Agreement and
the transactions contemplated hereby by certified mail, return receipt
requested, postage prepaid to it at its address for notice specified in
Section 3.4.
3.7 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the parties hereto in respect to the subject matter
contained herein and supersedes all prior agreements and understandings
among the parties with respect thereto. There are no representations,
promises, warranties, covenants or undertakings by any party, other than
those expressly set forth or referred to herein.
3.8 ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but
neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto without the prior
written consent of the other parties. Nothing contained in this Agreement,
expressed or implied, is intended to confer any benefits, rights or remedies
upon any person or entity, other than Olsten, Gentiva, OHS and Camden and,
prior to the Effective Time, Adecco.
3.9 FURTHER ASSURANCES AND CONSENTS. In addition to the actions specifically
provided for elsewhere in this Agreement, each of the parties hereto will
use its reasonable best efforts to (i) execute and deliver such further
instruments and documents and take such other actions as any other party may
reasonably request in order to effectuate the purposes of this Agreement and
to carry out the terms hereof and (ii) take, or cause to be taken, all
actions, and to do, or cause to be done, all things, reasonably necessary,
proper or advisable under applicable laws, regulations and agreements or
otherwise to consummate and make effective the transactions contemplated by
this Agreement, including, without limitation, using its reasonable efforts
to obtain any consents and approvals and to make any filings and
applications necessary or desirable in order to consummate the transactions
contemplated by this Agreement; PROVIDED that no party hereto shall be
obligated to pay any consideration therefor (except for filing fees and
other similar charges) to any third party from whom such consents, approvals
and amendments are requested or to take any action or omit to take any
action if the taking of or the omission to take such action would be
unreasonably burdensome to the party or its business.
3.10 TITLES AND HEADINGS. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
3.11 SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations, warranties
and agreements of the parties hereto contained in this Agreement shall
survive the consummation of the transactions contemplated herein.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
Olsten Corporation
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By:
Title:
Gentiva Health Services, Inc..
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By:
Title:
DNH Medical Management, Inc.,
d/b/a The Camden Group
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
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EXHIBIT C TO
OMNIBUS AMENDMENT NO. 2
[FORM OF TAX SHARING AGREEMENT]
[Attached as Exhibit B to the Separation Agreement
(Exhibit 10.1 to the Olsten Proxy/Adecco Prospectus/Gentiva
Health Services Prospectus)]