EXHIBIT 10.2
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
OMNIBUS AMENDMENT NO. 1
DATED AS OF OCTOBER 7, 1999
BY AND AMONG
OLSTEN CORPORATION
AARONCO CORP.
ADECCO SA,
AND
OLSTEN HEALTH SERVICES HOLDING CORP.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
OMNIBUS AMENDMENT
OMNIBUS AMENDMENT NO. 1 dated as of October 7, 1999 (the "Omnibus
Amendment") to each of the Separation Agreement dated as of August 17, 1999, by
and among Olsten Corporation, a Delaware corporation ("Olsten"), Aaronco Corp.,
a Delaware Corporation ("OHS") and Adecco SA, a societe anonyme organized under
the laws of Switzerland ("Adecco") (the "Separation 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 Separation Agreement and the
Employee Benefits Allocation Agreement, 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 OLSTEN HEALTH SERVICES.
1.1 OHS hereby transfers, conveys, assigns and delivers to Olsten Health
Services Holding Corp. all of OHS's rights and interests in the Agreements.
1.2 Olsten Health Services Holding Corp. 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 pursuant to the Agreements.
1.3 Any and all references to OHS in the Agreements shall, from and after
the date hereof, be deemed to be references to Olsten Health Services Holding
Corp. and, therefore, shall no longer be references to Aaronco Corp.
2. AMENDMENTS TO SEPARATION AGREEMENT.
2.1 The definition of "Consulting Agreements" is deleted in its entirety
and replaced with the following:
"Consulting Agreements" means the Amended and Restated Separation,
Consulting and Non-Competition Agreements dated as of October 7, 1999 by and
among Adecco, Olsten and each of Edward A. Blechschmidt and Stuart Olsten.
3. AMENDMENTS TO EMPLOYEE BENEFITS ALLOCATION AGREEMENT.
3.1 The reference in Section 2(d) to "the Separation, Consulting and
Non-Competition Agreements between Albert, Olsten and the following individuals
dated August 17, 1999;" is hereby amended to refer to "the Amended and Restated
Separation, Consulting and Non-Competition Agreements between Adecco, Olsten and
the following individuals dated as of October 7, 1999".
3.2 The reference in Section 2(d) to "the Separation, Consulting and
Non-Competition Agreement between Olsten and Maureen McGurl dated August 17,
1999" is hereby amended to refer to "the Amended and Restated Separation,
Consulting and Non-Competition Agreement between Olsten and Maureen McGurl dated
as of October 7, 1999".
3.3 The reference in Section 6(a) to the "Olsten Supplemental Retirement
Plan" is deleted.
3.4 New Section 6A is added to read as follows:
6A. Supplemental Executive Retirement Plan.
(a) On or prior to the SERP Transfer Date (as defined below), Olsten
shall amend the Olsten Supplemental Executive Retirement Plan (the "Olsten
SERP") to provide (i) that all accrued benefits thereunder of actively
employed OHS Employees shall be vested in full as of the SERP
Transfer Date (as defined below), (ii) that OHS Employees and their
dependents and beneficiaries shall cease to participate in and accrue
benefits thereunder as of the Olsten SERP transfer date established by
Olsten, which shall be at least two business days prior to the date of the
Effective Time (the "SERP Transfer Date"), and (iii) that no benefits shall
thereafter be payable under the Olsten SERP to OHS Employees, Olsten
Employees who (as of the date hereof) are former Olsten Employees or any of
their dependents or beneficiaries (the "OHS SERP Participants").
(b) As of the SERP Transfer Date, OHS shall establish a nonqualified
supplemental executive retirement plan substantially similar to the Olsten
SERP (the "OHS SERP"), and shall assume all liabilities and obligations with
respect to the OHS SERP Participants under the Olsten SERP, whether arising
prior to on or after the SERP Transfer Date (notwithstanding any subsequent
termination of the Olsten SERP). All such liabilities and obligations shall
cease to be liabilities or obligations of Olsten as of the SERP Transfer
Date.
(c) No termination of an Employee's employment shall be deemed to occur
for purposes of the OHS SERP as a result of any actions taken pursuant to
this Agreement or otherwise as a result of the consummation of the
transactions contemplated by the Separation Agreement, provided that the
Employee remains continuously employed by the OHS Group.
(d) As soon as practicable following the SERP Transfer Date, OHS shall
establish a trust to be used in connection with the OHS SERP (the "OHS SERP
Trust") for the purpose of aiding in the provision of benefits under the OHS
SERP. As of the SERP Transfer Date, Olsten shall cause the trustee of the
trust under the Olsten SERP (the "Olsten SERP Trust") to transfer to the
trustee of the OHS SERP Trust the amount held in the Olsten SERP Trust in
excess of the amount necessary to fully satisfy all remaining benefits and
obligations under the Olsten SERP upon its termination in accordance with
Section 6A(e) and (f) below.
(e) Immediately prior to the Effective Time and after the SERP Transfer
Date, Olsten shall terminate the Olsten SERP, or cause it to be terminated,
shall cause all accrued benefits thereunder of actively employed
participants to be vested in full as of the date of termination of the
Olsten SERP, and all accrued benefits under the Olsten SERP will be
distributed by Olsten, or Olsten will cause such accrued benefits to be
distributed, to each participant or beneficiary as soon as administratively
practicable in the form of a lump sum payment. In the event the amount of
assets in the Olsten SERP Trust (after taking into account the transfer of
assets to the OHS SERP Trust under Section 6A(d) above) exceeds the amount
necessary to pay all accrued benefits in full under the Olsten SERP, the
Closing Intercompany Balance shall be reduced by the amount of such excess.
In the event the amount of assets in the Olsten SERP Trust (after taking
into account the transfer of assets to the OHS SERP Trust under
Section 6A(d) above) is insufficient to pay all accrued benefits under the
Olsten SERP in full, the Closing Intercompany Balance shall be increased by
the amount of such shortfall.
(f) Olsten shall take all actions necessary to effectuate the provisions
of this Section 6A and to terminate the Olsten SERP immediately prior to the
Effective Time and distribute all accrued benefits thereunder in the form of
lump sum payments as soon as practicable thereafter, including, without
limitation, amending the Olsten SERP to provide for (i) vesting of all
accrued benefits of actively employed participants as of the time of
termination of the Olsten SERP and (ii) distribution of all accrued benefits
under the Olsten SERP in the form of a lump sum as soon as administratively
practicable following termination of the Olsten SERP.
4. MISCELLANEOUS.
4.1 Any and all references to Albert in the Agreements shall, from and
after the date hereof, be deemed to be references to Adecco and, therefore,
shall no longer be references to Albert.
2
4.2 Any and all references to the Agreements shall refer to the Agreements
as amended by this Omnibus Amendment.
4.3 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.
4.4 This Omnibus Amendment shall be governed by, and construed in
accordance with, the laws of the State of Delaware without giving effect to any
provisions thereof relating to conflicts of law.
4.5 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.
3
IN WITNESS WHEREOF, the parties hereto have caused this Omnibus Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
OLSTEN CORPORATION
/s/ EDWARD A. BLECHSCHMIDT
----------------------------------
Name: Edward A. Blechschmidt
Title: President and Chief
Executive Officer
AARONCO CORP.
/s/ EDWARD A. BLECHSCHMIDT
----------------------------------
Name: Edward A. Blechschmidt
Title: President and Chief
Executive Officer
ADECCO SA
/s/ JOHN P. BOWMER
----------------------------------
Name: John P. Bowmer
Title: Chief Executive Officer
/s/ FELIX A. WEBER
----------------------------------
Name: Felix A. Weber
Title: Chief Financial Officer
OLSTEN HEALTH SERVICES HOLDING
CORP., a Delaware corporation
/s/ EDWARD A. BLECHSCHMIDT
----------------------------------
Name: Edward A. Blechschmidt
Title: President and Chief
Executive Officer
4