AMENDMENT TO ASSET PURCHASE
AGREEMENT
This AMENDMENT
TO ASSET PURCHASE AGREEMENT (this “ Amendment
”) is hereby made and entered into as of February 28,
2007 by and among Global Employment Holdings, Inc., a Delaware
corporation (the “ Buyer ”), Career Blazers
Personnel Services, Inc., a New York corporation, Career Blazers
Contingency Professionals, Inc., a New York corporation, and Career
Blazers Personnel Services of Washington, D.C., Inc., a District of
Columbia corporation (each of such corporations, a “
Seller Constituent ”; collectively, the “
Seller ”), and CapeSuccess LLC, a Delaware limited
liability company (the “ Seller Parent
”).
WHEREAS ,
the Buyer, the Seller and the Seller Parent previously entered into
that certain Asset Purchase Agreement dated as of December 29,
2006 (the “ Original Agreement ”), pursuant to
which the Seller agreed to sell to the Buyer and the Buyer agreed
to purchase substantially all of the property, assets and Business,
and to assume certain obligations and liabilities of the Seller,
all upon terms and subject to the conditions set forth in the
Original Agreement; and
WHEREAS ,
the Buyer, the Seller and the Seller Parent have agreed to amend
certain sections of the Original Agreement in accordance with this
Amendment.
NOW,
THEREFORE , in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the Buyer, the
Seller and the Seller Parent hereby agree as follows:
The Original
Agreement shall be amended by:
(A) deleting the
definition of “Net Working Capital” set forth in
Section 1 of the Original Agreement in its entirety and
substituting therefore the following:
(B) adding as a
new defined term to Section 1 of the Original Agreement, the
following:
““
Severance Obligation ” means the severance obligation
payable to the Seller’s Vice President Perm New York (“
Designated Employee ”) pursuant to the employment
agreement by and between Designated Employee and Seller in effect
as of the Closing if Designated Employee’s employment is
terminated by the Buyer within 180 days of the
Closing.”
““
Net Working Capital ” means (a) the amount of the
consolidated current assets of the Seller included in the
Transferred Assets, minus (b) the amount of the consolidated
current liabilities of the Seller included in the Assumed
Liabilities, all as determined in accordance with GAAP. The
calculation of Net Working Capital shall be made in a manner
consistent with the treatment of the items listed on
Exhibit C. To the extent the Seller, on or prior to Closing,
makes any payment for current liabilities accrued in the ordinary
course of business that would otherwise be reflected as a current
liability in the calculation of Net Working Capital, such satisfied
current liability shall not be included in the calculation of Net
Working Capital as provided for herein.
(C) deleting
Section 2.3 of the Original Agreement in its entirety and
substituting therefore the following:
“
Agreement to Assign and Assume Liabilities . At the Closing,
on and subject to the terms and conditions set forth in this
Agreement, the Buyer agrees to assume to the extent arising from
and related to the Business and the Transferred Assets all the
Liabilities of the Seller, including but not limited to the
Severance Obligation, other than the Excluded Liabilities
(collectively, the “ Assumed Liabilities
”).”
(D) deleting from
Section 2.8 of the Original Agreement the phrase “One
Million Three Hundred Fifty Thousand Dollars ($1,350,000)”
and substituting therefore the phrase “One Million Five
Hundred Twenty-Five Thousand Dollars
($1,525,000)”.
(E) deleting
Section 2.10(d) of the Original Agreement in its entirety and
substituting therefore the following:
“(d) Within
ninety (90) days after the Closing Date, the Buyer shall
provide the Seller a proposed allocation of the Purchase Price
among the Assets acquired by the Buyer. Such allocation is intended
to comply with the requirements of Section 1060 of the Code.
Within fifteen (15) days of the Seller’s receipt of the
Buyer’s proposed allocation of the Purchase Price among the
Assets acquired by the Buyer, the Buyer and the Seller shall
mutually agree on a final allocation of the Purchase Price among
the Assets acquired by the Buyer. The Seller and the Buyer shall
deliver within one hundred twenty (120) days after the Closing
Date and shall file Form 8594 with their respective Tax
Returns consistent with such final allocation. The parties shall
treat and report the transaction contemplated by this Agreement in
all respects consistently for purposes of any Tax, including the
calculation of gain, loss and basis with reference to the Purchase
Price allocation made pursuant to this Section 2.10(d). The
parties shall not take any action or position inconsistent with the
obligations set forth in this Agreement. The Seller agrees to
indemnify and hold the Buyer and its Affiliates harmless and the
Buyer hereby agrees to indemnify and hold the Seller harmless, from
and against any and all losses, liabilities and expenses (including
additi
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