EXHIBIT 2.6
AMENDMENT TO ESCROW AGREEMENT AND PURCHASE AGREEMENTS
This Amendment to Escrow Agreement and Purchase Agreements is
entered into as of the 8th day of November, 1996 by and among Continental Field
Service Corporation ("Continental"), Progressive Telecom, Inc. ("Progressive"),
COMFORCE Global, Inc. ("COMFORCE"), Beth Wilson Hill, Michael Hill, Roy Hill and
McCarthy, Fingar, Donovan, Drazen & Smith, L.L.P. (the "Escrow Agent").
WITNESSETH:
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WHEREAS, Progressive, Continental, COMFORCE and the Escrow
Agent entered into an Escrow Agreement dated as the 25th of October, 1996 (the
"Escrow Agreement") pursuant to which, among other things, the Escrow Agent
agreed to hold certain closing documents in escrow; and
WHEREAS, Progressive, COMFORCE and Beth Wilson Hill entered
into an Asset Purchase Agreement on October 25, 1996 (the "Progressive Purchase
Agreement") and Continental, COMFORCE, Michael Hill and Roy Hill entered into an
Asset Purchase Agreement on October 25, 1996 (the "Continental Purchase
Agreement"), and
WHEREAS, the parties hereto desire to amend the Escrow
Agreement, the Progressive Purchase Agreement and the Continental Purchase
Agreement (collectively, the "Purchase Agreements") as set forth below; and
NOW, THEREFORE, in consideration of the premises and
agreements hereinafter made, and intending to be legally bound, the parties
hereto agree as follows:
1. Defined Terms. Capitalized terms used herein shall
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unless otherwise defined herein have the definitions ascribed to such terms in
the Escrow Agreement.
2. Amendment to Escrow Agreement. Clauses (i), (ii) and
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(iii) of Section 4 in the Escrow Agreement are hereby deleted in their entirety.
The remaining portion of Section 4 shall be amended to state in its entirety as
follows:
If the consideration is not paid as provided in the
Purchase Agreements, on or before the close of
business on November 8, 1996, the Documents shall be
null and void and of no further force or effect and
the Escrow Agent shall return one set of fully
executed Documents to COMFORCE and one set of fully
executed Documents to Continental and Progressive.
3. Amendment to Purchase Agreements.
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a. Amendment to Progressive Purchase Agreement.
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Section 3.1 of the Progressive Purchase Agreement is hereby revised in its
entirety to read as follows:
3.1 Closing Date. The payment of
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consideration and exchange of
documents contemplated hereby (the
"Closing") shall be done on November
8, 1996. The Seller shall receive
the economic benefits and be
responsible for the liabilities and
obligations of the Seller's business
until November 10, 1996.
b. Amendment to Continental Purchase Agreement.
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(i) Section 3.1 of the Continental
Purchase Agreement is hereby revised in its entirety
to read as follows:
3.1 Closing Date. The payment of
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consideration and exchange of
documents contemplated hereby (the
"Closing") shall be done on November
8, 1996. The Seller shall receive
the economic benefits and be
responsible for the liabilities and
obligations of the Seller's business
until November 10, 1996.
(ii) Section 2.1(a)(iii) of the Continental
Purchase Agreement is hereby revised in its entirety
to read as follows:
(iii) cause to be delivered to
Escrow Agent an aggregate number of
shares of COMFORCE Stock registered
in the name of Seller that is the
highest whole number of shares of
COMFORCE Stock that has an aggregate
value not greater than Five Hundred
Seventy-Five Thousand Dollars
($575,000), said value to be
determined based on the average
closing price of said stock as
quoted on the American Stock
Exchange on each of the ten (10)
business days commencing on October
24, 1996 and ending on November 6,
1996, all of which shall be
Restricted Shares, as that term is
defined in the Stockholders
Agreement attached hereto as
Exhibit 7.8;
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4. Amendment to Escrow Agreement and Stockholders
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Agreement. The Escrow Agreement relating to the consideration paid pursuant to
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the Continental Purchase Agreement (the "Payment Escrow Agreement") and the
Stockholders Agreement relating to the Continental stock to be paid into escrow
pursuant to the Continental Purchase Agreement are hereby revised to substitute
"36,800 shares" (the "Shares") for "33,973 shares" in all instances.
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5. Delivery of Stock Certificate. The parties agree that a
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Certificate evidencing 33,973 shares shall be delivered to the Escrow Agent
pursuant to the Payment Escrow Agreement on November 8, 1996. A Certificate
evidencing 2,827 shares shall be delivered to the Escrow Agent pursuant to the
Payment Escrow Agreement on or before November 13, 1996.
6. Letters of Credit. Continental shall retain in place all
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existing letters of credit to secure performance under all outstanding contracts
between Continental and the New York State Department of Corrections (the
"Existing Letters of Credit") until such time as COMFORCE shall have arranged
for the release of the Existing Letters of Credit. COMFORCE shall arrange for
the release of the Existing Letters of Credit and all liens to secure related
obligations prior to November 30, 1996. Prior to the release of the Existing
Letters of Credit, COMFORCE shall promptly reimburse Continental for all out of
pocket expenses in maintaining such Existing Letters of Credit beyond November
1, 1996. In the event that the Existing Letters of Credit are not released by
November 1, 1996, then COMFORCE shall continue to reimburse Continental for all
out of pocket expenses in maintaining such Existing Letters of Credit. If
COMFORCE fails to pay Continental actual out of pocket expenses as required
hereby and Continental successfully brings an action for such expenses, COMFORCE
shall be required to pay Continental's reasonable expenses (including attorney's
fees) in collecting such expenses.
7. Escrow Account Pending Payroll. COMFORCE shall wire into
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the account of the Escrow Agent $150,000 (the "Payroll Escrow Funds") which
amount shall decrease the amount being paid to Continental pursuant to Section
2.1(a)(i) of the Continental Agreement by $150,000. Upon receipt of evidence of
the payment by COMFORCE of payroll for periods prior to November 10, 1996, the
Escrow Agreement shall release on a dollar for dollar basis the Payroll Escrow
Account to COMFORCE. Notwithstanding the foregoing, it is understood that Seller
shall remain liable for any expenses for periods prior to November 10 in excess
of the Payroll Escrow Amount.
8. Temporary Arrangement. Notwithstanding any other
provision in any other Agreement, it is hereby agreed that Continental shall pay
$995,031 (the "Temporary Funds") to a cash collateral account for Marine Midland
upon receipt from Marine Midland of UCC-3 termination statements terminating all
existing liens on assets of Continental and/or Progressive. Upon release of
Existing Letters of Credit, the Temporary Funds shall be returned to
Continental.
9. Effect of Amendment. Except as expressly amended hereby,
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the Escrow Agreement and the Purchase Agreements remain in full force and
effect.
10. Counterparts. This Amendment may be executed in several
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counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. Facsimile. The Escrow Agent may rely upon facsimile
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signatures for any purpose under this Amendment.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the day and year first written above.
CONTINENTAL FIELD SERVICE
CORPORATION
By: /s/ Michael Hill
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Title: Vice President
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PROGRESSIVE TELECOM, INC.
By: /s/ Beth Wilson Hill
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Title: President
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COMFORCE Global, Inc.
By: /s/ Andrew Reiben
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Title: Assistant Secretary
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MCCARTHY, FINGAR, DONOVAN,
DRAZEN & SMITH
By: /s/ Thomas Curtin
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Title: Attorney
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/s/ Beth Wilson Hill
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BETH WILSON HILL
/s/ Michael Hill
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MICHAEL HILL
/s/ Roy Hill
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ROY HILL
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