EXHIBIT
10.6
AMENDMENT NO. 1 TO STOCK PURCHASE
AGREEMENT
AMENDMENT NO. 1, dated as of October 30, 1997
(this "Amendment"), to the Stock Purchase Agreement, dated as
of September 24, 1996 (the "Purchase Agreement") , among Staff
Builders, Inc., a New York corporation ("Buyer") , Xxxxxxx X.
Xxxxxxx and Xxxxxxx Xxxxxx (each a "Seller" and collectively
"Sellers"), Xxxxxxx Xxxxxxxxxx and Chelsea Computer
Consultants, Inc., a New York corporation ("CCC").
WHEREAS, the parties hereto have executed and
delivered the Purchase Agreement and have agreed to amend
the Purchase Agreement as set forth in this Amendment; and
WHEREAS, CCC has repurchased all shares of its
common stock, no par value ("Common Stock") , owned by
Xxxxxxx Xxxxxxxxxx pursuant to a Stock Redemption Agreement
dated as of October 14, 1997.
NOW, THEREFORE, for good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions. Capitalized terms used but
not defined in this Amendment shall have the meanings given
to such terms in the Purchase Agreement.
Section 2. Purchase and Sale of Additional
Shares. Article 4 of the Purchase Agreement is amended by
replacing such Article in its entirety with the following:
"ARTICLE 4. PURCHASE AND SALE OF
ADDITIONAL SHARES
4.1 Exercise of Option. At the option of Buyer, each
Seller shall sell to Buyer, and Buyer shall purchase from each
Seller, 280.04 shares of Common Stock at the aggregate cash
purchase price of $6,200,000 (the "Option", and all the shares
purchased by Buyer pursuant to the Option are hereinafter
referred to as the "Option Shares") . The Option shall be
exercisable on or before October 30, 1997 (the "Option
Termination Date").
4.2 Contribution of Millenium. Upon exercise of the
Option by Buyer, the Sellers shall contribute for no additional
consideration all the outstanding shares of capital stock of
Millenium Computer Systems, Inc., a New York corporation
("Millenium") , to CCC (the "Millenium Contribution").
4.3 Employment Agreements. Upon exercise of the
Option by Buyer, Sellers, together with CCC, shall execute and
deliver Amendments to their respective Employment
Agreements in the forms attached hereto as Exhibit 4.3(a) and
4.3(b) (the "Employment Agreement Amendments").
4.4 Shareholders Agreement. Upon exercise of the
Option by Buyer, Sellers, Buyer and CCC shall execute and
deliver an Amendment to the Shareholders Agreement, dated
24, 1996, by and among Sellers, Buyer and CCC, in the form
attached hereto as Exhibit 4.4 (the "Shareholder Agreement
Amendment").
4.5 Option Closing. The closing of the Option
exercise (the "Option Closing") will take place at the offices of
Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, on October 30, 1997 (the "Option Closing Date").
4.6 Deliveries at the Option closing. At the Option
Closing:
(a) Sellers shall deliver to Buyer:
(i) certificates representing the Option
Shares duly endorsed for transfer to
Buyer;
(ii) evidence of the Millenium Contribution;
(iii) copies of the executed Employment
Agreement Amendments;
(iv) an executed counterpart of the
Shareholder Agreement Amendment; and
(v) updated Schedules to this Agreement, to
the extent such Schedules require
modification in order to remain true and-correct on and as of
the date of the Option Closing Date.
(b) Buyer shall pay to each Seller $6,200,000 in
immediately available federal funds by wire transfer to the
bank accounts designated by each Seller prior to the option
Closing and shall deliver an executed counterpart of the
Shareholder Agreement Amendment.
4.7 Exchange of Buyer Shares.
(a) In the event Buyer does not exercise the Option,
Buyer agrees to transfer and convey ownership to
CCC of 190 shares of Common Stock; in exchange
and consideration therefor, CCC agrees to
transfer and convey ownership to CCC of the
Franchise Program, including but not limited to
all contractual commitments, franchise
agreements, marketing materials and good will
associated therewith (collectively, the "Franchise
Assets") (the "Exchange Transaction").
(b) The Exchange Transaction will take place at the
offices of Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxx
00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000, on the
third (3rd) business day following the Option
Termination Date (the "Exchange Date").
On the Exchange Date, (i) Buyer agrees to deliver
to CCC certificates
representing 190 shares of Common Stock owned
by it duly endorsed for
transfer to CCC and (ii) CCC agrees to transfer,
convey and deliver the
Franchise Assets to Buyer by assignments and
other instruments of transfer and conveyance
satisfactory in form and substance to counsel for Buyer."
Section 3. Representations and Warranties of Sellers.
Each Seller represents and warrants to Buyer as follows:
(a) The authorized capital stock of CCC
consists of 1,000 shares of Common Stock of which 919 shares
are issued and outstanding. All Option Shares have been
validly authorized and issued, and are fully paid and
nonassessable. Except as contemplated by this Agreement, there
is no security, option, warrant, right, call, subscription
agreement, commitment or understanding of any nature
whatsoever to which either Seller is a party, that directly or
indirectly (i) calls for the issuance, sale, pledge or other
disposition of any shares of capital stock of CCC or any
securities convertible into, or other rights to acquire, any shares
of capital stock of CCC, (ii) obligate either Seller to grant,
offer or enter into any of the foregoing or (iii) relates to the
voting or control of such capital stock, securities or rights.
Each Seller has good and marketable title to the Option Shares
owned by it, free and clear of any liens, security interest and
other encumbrances.
(b) The authorized capital stock of Millenium
consists of 200 shares of common stock, no par value, all of
which shares (the "Millenium Shares") are issued and
outstanding and owned by Sellers. All Millenium Shares have
been validly authorized and issued, and are fully paid and
nonassessable. Except as contemplated by this Agreement, there
is no security, option, warrant, right, call, subscription
agreement, commitment or understanding of any nature
whatsoever to which either Seller is a party, that directly or
indirectly (i) calls for the issuance, sale, pledge or other
disposition of any shares of capital stock of Millenium or any
securities convertible into, or other rights to acquire, any shares
of capital stock of Millenium, (ii) obligate either Seller to
grant, offer or enter into any of the foregoing or (iii) relates to
the voting or control of such capital stock, securities or rights.
Each Seller has good and marketable title to the Millenium
Shares owned by it, free and clear of any liens, security interest
and other encumbrances.
(c) Sellers have delivered to Buyer a copy of
the draft balance sheets of CCC and Millenium as of September
30, 1997, and the related statements of revenues and expenses,
changes in fund balances and statements of cash flows for the
twelve-month period ended September 30, 1997 (the "Draft
Financial Statements"), which are subject to an audit by a
public accounting firm. The Draft Financial Statements have
been prepared from the "Cooks and records of CCC and
Millenium on a consistent basis in accordance with generally
accepted accounting principles, as of the date and for the
period then ended. The Draft Financial Statements fairly
present the financial positions of CCC and Millenium and their
respective results of operations for the period then ended. To
Sellers knowledge, neither CCC nor Millenium has any
indebtedness, liability or obligation of any character
whatsoever, whether or not accrued, whether known or
unknown, fixed or unfixed, xxxxxx or inchoate, liquidated or
unliquidated, contingent or otherwise, including without
limitation liabilities for taxes, other governmental charges or
pending lawsuits, other than liabilities reflected in the Draft
Financial Statements.
(d) The representations and warranties of
Sellers contained in Sections 5.1(a), 5.1(e), 5.1(f), 5.2, 5.3, 5.4 and
5.6 through 5.22 of the Purchase Agreement are true and
correct on the date hereof.
Section 4. Further Assurances. Each party to this
Amendment agrees to execute, acknowledge, deliver, file and
record such further certificates, amendments, instruments and
documents, and to do all such other acts and things, as may be
required by law or as may be necessary or advisable to carry
out the intent and purpose of this Amendment.
Section 5. Effective Date; Purchase Agreement.
This Amendment shall be effective as of the date hereof and,
except as set forth herein, the Purchase Agreement shall remain
in full force and effect, shall apply to this Amendment, and
shall be otherwise unaffected hereby.
Section 6. Headings. The section headings herein
are for convenience of reference only, do not constitute part of
this Amendment and will not be deemed to limit or otherwise
affect any of the provisions hereof.
Section 7. Counterparts. This Amendment may
be executed in two or more counterparts, each of which shall
constitute an original and all of which, when taken together,
shall constitute one and the same agreement.
Section 8. Governing Law. THIS AMENDMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICT OF LAW PROVISIONS THEREOF.
Section 9. Severability. If any one or more of the
provisions of this Amendment is held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the
remaining provisions of this Amendment will not be affected
thereby, and Sellers, Buyer and CCC will use their reasonable
efforts to substitute one or more valid, legal and enforceable
provisions which insofar as practicable implement the purposes
and intent hereof. To the extent permitted by applicable law,
each party waives any provision of law which renders any
provision of this Amendment invalid, illegal or unenforceable
in any respect.
Section 10. Successors and Assigns. This
Amendment shall be binding upon the parties hereto and their
respective successors, executors, administrators, legal
representatives, heirs and legal assigns and shall inure to the
benefit of the parties hereto and, except as otherwise provided
herein, their respective successors, executors, administrators,
legal representatives, heirs and legal assigns. No person other
than the parties hereto and their respective successors,
executors, administrators, legal representatives, heirs and legal
assigns shall have any rights or claims under this Amendment.
IN WITNESS WHEREOF, the parties hereto have
executed this Amendment as of the day and year first above
written.
STAFF BUILDERS, INC.
By: /s/Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: President/CEO/
Chairman of the Board
By: /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
CHELSEA COMPUTER CONSULTANTS, INC.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: President/Chairman of the Board
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
BY AND AMONG STAFF BUILDERS, INC. AND XXXXXXX
X. XXXXXXX,
XXXXXXX XXXXXX, XXXXXXX FLEISHCHNER AND
CHELSEA COMPUTER
CONSULTANTS, INC.
SCHEDULE TITLE
EXHIBIT 4.3A AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT BY
AND BETWEEN CHELSEA
COMPUTER CONSULTANTS,
INC. AND XXXXXXX XXXXXX
EXHIBIT 4.3B AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT BY
AND BETWEEN CHELSEA
COMPUTER CONSULTANTS,
INC. AND XXXXXXX X.
XXXXXXX
EXHIBIT 4.4 AMENDMENT NO. 1 TO
SHAREHOLDERS AGREEMENT
BY
AND AMONG CHELSEA
COMPUTER CONSULTANTS,
INC.
XXXXXXX X. XXXXXXX,
XXXXXXX XXXXXX AND STAFF
BUILDERS, INC.
* The Company agrees to furnish supplementally a copy of any
omitted schedule to the Commission upon request.
Chelsea/kl
