EXHIBIT 10.6
AMENDMENT TO ASSET PURCHASE AGREEMENT
This Amendment to Asset Purchase Agreement ("Amendment") is made and
entered into this ____ day of November, 1999, by and among BHS Consulting Corp.,
a Delaware corporation ("Seller"), Xxxxx X. Xxxxx and Xxxxx X. Xxxxx (the
"Shareholders"), and Cornell Corrections, Inc., a Delaware corporation
("Purchaser").
INTRODUCTION
The parties entered into an Asset Purchase Agreement on May 10, 1999
(the "Original Agreement") and the parties also entered into an Extension
Agreement dated September 30, 1999 (the "Extension Agreement") which amended the
Original Agreement in certain respects (the Original Agreement, as amended by
the Extension Agreement, is hereinafter referred to as the "Purchase
Agreement"). The parties now desire to further amend the Purchase Agreement.
This Amendment sets forth the agreement of the parties respecting that further
amendment of the Purchase Agreement.
TERMS AND CONDITIONS
1. PURCHASE PRICE. Section 3.3 of the Purchase Agreement is
hereby amended in its
entirety to read as follows:
"The aggregate consideration for the purchase of the Acquisition Assets
and the execution and delivery by the Seller of the Covenant Not to
Compete Agreement to the Purchaser (the "Seller Noncompete Agreement")
shall be $1,900,000 PLUS (i) the amount to be added to the consideration
payable under the Seller Noncompete Agreement pursuant to Section 5 of the
Extension Agreement, PLUS (ii) the salary and benefit costs incurred by
Seller from July 1, 1999 through the Closing of the purchase and sale
provided for herein for Xxxxx Xxxxxxxxxxx as set forth in SCHEDULE 3.3
hereof, PLUS (iii) the salary and benefit costs incurred by Seller from
October 16, 1999 through the Closing of the purchase and sale provided for
herein for Xxxxxx Xxxxxxxx as set forth in SCHEDULE 3.3 hereof, PLUS (iv)
the salary and benefit costs incurred by Seller from October 16, 1999
through the Closing of the purchase and sale provided for herein for Xxxx
Xxxxx as set forth in SCHEDULE 3.3 hereof PLUS (v) an amount determined by
multiplying $100 by the number of hours as to which Purchaser requests and
is given access to Seller's Asset Management staff during the period of
October 20, 1999 through the Closing as set forth in SCHEDULE 3.3 hereof,
LESS (vi) a working capital allowance of $91,000, and LESS (vii) an amount
equal to Seller's accrued vacation pay assumed by Purchaser under SECTION
4.2(B) (the "PURCHASE PRICE"). The consideration shall be payable to
Seller at the Closing by wire transfer of immediately available funds to
an account designated in writing by Seller."
2. ALLOCATION REPORTING. SCHEDULE 3.4 as attached to the Purchase
Agreement is hereby deleted and shall be replaced by the SCHEDULE 3.4 attached
hereto.
3. ADDITIONAL SCHEDULES. Attached hereto are SCHEDULES 3.1(I),
3.1(III) AND 4.2(B) to the Purchase Agreement.
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4. CMHC MATTERS. Because Purchaser has determined that it would
prefer to enter into a separate arrangement with CMHC so that Purchaser will not
be obliged to share its use of CMHC software with Seller under a sublicense or
other agreement between Purchaser and Seller, and Seller is agreeable to
changing the approach taken with respect to the CMHC Software under the Purchase
Agreement, it is hereby agreed that (i) the text of Section 3.1(viii) of the
Purchase Agreement and the text of SCHEDULE 3.1(VIII) is hereby deleted and
replaced in each instance with "Intentionally Left Blank", except that for
purposes of this Amendment Agreement and the license agreement referred to below
in this Section 4, the terms "CMHC Software" and "CMHC Agreements" have the same
meanings as defined in the Original Agreement, (ii) the phrase " including,
without limitation, those consents listed on SCHEDULE 5.5 hereto," is hereby
deleted from Section 9.1(j) of the Purchase Agreement , and (iii) all other
references to the CMHC Software or CMHC contained in the Purchase Agreement
shall, except as subsequently provided in this Section 4 of this Amendment
Agreement, be of no effect (whether set forth in any covenant, warranty,
representation, condition or otherwise). Upon submission to Seller by Purchaser
of a copy of an invoice issued by CMHC for the grant to Purchaser of a separate
license to Purchaser which includes the right to have eight users use software
which is the same as the CMHC Software, together with copies of such other
supporting documentation as Seller may reasonably request, Seller shall promptly
pay to CMHC when due under such invoice an amount equal to one half of the
amount set forth in such invoice which is attributable to that separate eight
user license to Purchaser or, if such invoice has already been paid by
Purchaser, Seller shall promptly reimburse Purchaser for one half of the amount
set forth in such invoice which is attributable to that separate eight user
license to Purchaser. The license agreement to be entered into between Seller
and Purchaser at the Closing for purposes of the license described in Section
3.1(vii) of the Purchase Agreement shall also include the grant of a sublicense
from Seller to Purchaser with respect to the CMHC Software in the form and
substance of the following:
SUBLICENSE OF CMHC SOFTWARE. BHS hereby grants a nonexclusive,
royalty-free sublicense to Cornell for up to eight users, who shall
be employees of Cornell acting on behalf of Cornell, to use the CMHC
Software in the same manner and to the same extent as BHS is able to
use the CMHC Software under the CMHC Agreements; provided, that such
sublicense shall not exceed in scope the rights that BHS may provide
in accordance with the consent letter agreement dated August 31,
1999 which was signed by CMHC Systems, Inc. on September 8, 1999, a
copy of which has been provided to Cornell. The sublicense described
in the immediately preceding sentence shall remain in effect only
until the earlier of (i) the date on which CMHC has completed the
installation at Cornell's offices of the software that CMHC is
licensing directly to Cornell as described in the attached EXHIBIT A
and such software has become fully operational, (ii) the date on
which BHS has fully moved its operations from the premises that it
occupies at 1234 S. Michigan Avenue, Chicago, or (iii) the date on
which this License Agreement is terminated. Cornell acknowledges and
agrees that BHS shall not have any liability to Cornell arising out
of Cornell's use of the CMHC Software pursuant to this sublicense,
Cornell hereby waiving any such liability and covenanting not to
make any claim against BHS based thereon.
The Exhibit A referred to in the above sublicense provisions shall consist of a
copy of the November 1, 1999 letter from Xxxxxxxx Xxxx of CMHC Systems to Xxxxx
Xxxxxx of Cornell Abraxas, together with a copy of the face page of the
Equipment Purchase and Software License Agreement which accompanied such letter.
5. EMPLOYEE ACCESS XXXXXXX.Xx is hereby agreed that (i) the text of
Section 9.2(g) of the Purchase Agreement is hereby deleted and replaced with the
words "Intentionally Deleted," and (ii) all other references to the Employee
Access Agreement contained in the Purchase Agreement shall be of no effect
(whether set forth in any covenant, warranty, representation, condition or
otherwise). For a period of 21 days from and after the Closing, Purchaser shall,
at no expense to Seller, furnish to Seller upon request the services of (and
including without limitation the use of facilities, equipment and supplies
normally used by) those Transferred Employees who were prior to the Closing
either a senior accountant of Seller assigned to Seller's Interventions account
or part of Seller's billing staff or data processing staff (all of the foregoing
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collectively the "Billing Employees"), together with the successor or successors
of any such Billing Employees, for purposes of preparing, submitting and
processing invoices, statements and other documentation (i) which is necessary
or desirable for purposes of collecting monies owed to Interventions relating to
periods prior to the Closing, and (ii) which Seller would in the ordinary course
have prepared, submitted or processed within the period of 21 days following the
Closing. Requests for such services may be submitted orally or in writing on
behalf of Seller. Subject to such adjustments as may be reasonably required by
Seller, performance of those services shall be rendered in the same form and
manner as the activities and documentation included in those services were
rendered, prepared and accomplished prior to the Closing when the Billing
Employees were employees of Seller. Purchaser shall respond to each such request
by Seller for those services by commencing the action required of Purchaser
under this Section 5 not later than the first business day which immediately
follows the date on which the request in question is submitted and causing the
Billing Employees to promptly and diligently complete the requested tasks.
Cornell shall pay all compensation of the Billing Employees, including without
limitation wages, benefit premiums and federal, state or local employment
withholding taxes. When providing the services to be furnished by Purchaser
described above, the Billing Employees shall be deemed to be employees of
Purchaser and shall not then be deemed to be employees of Seller; provided, that
nothing set forth herein shall obligate Purchaser to enter into any employment
contract with any of the Billing Employees and a termination of the employment
of one or more of the Billing Employees (whether such termination was made by
Purchaser or the Billing Employee in question) shall not in and of itself
constitute a failure by Purchaser to fulfill its obligations hereunder. Except
for submitting invoices and other documentation in accordance with Seller's
requests, Purchaser shall not authorize, and shall use its best good faith
efforts to keep its employees and representatives from making an unauthorized,
disclosure of any of the information provided to Purchaser or its employees by
Seller that relates to such services, and shall upon request deliver to Seller
all materials of any nature which contain or disclose all or any part of that
information; provided, that the foregoing restriction and obligation in this
sentence shall not apply to information that Purchaser can demonstrate (i) was
already possessed by it prior to the Closing other than as a result of any
transaction between Purchaser and Seller, or (ii) is known to the general public
without disclosure by Purchaser or an employee or representative of Purchaser.
6. ADDITIONAL LITIGATION MATTERS. Schedule 5.11 of the Purchase
Agreement is hereby amended to additionally include and refer to the following
matters: (i) Case No. 99L51089 in the Circuit Court of Xxxx County, Illinois,
having the caption of "Bennierene Castile v. Illinois Department of Employment
Security; Director of Illinois Department of Employment Security; Board of
Review; BHS Consulting Corp.- Interventions", and (ii) Case No. 99MI600298 in
the Circuit Court of Xxxx County, Illinois, having the caption of "Xxxx Xxxxx
and Xxx Xxxxxxxx v. Interventions and BHS Consulting Corp."
7. INTERIM MANAGEMENT FEES. Section 5 of the Extension Agreement is
hereby amended (and the Purchase Agreement is therefor amended accordingly) to
provide in its entirety as follows:
If the Closing Date is any day other than the first day of a
calendar month, at Purchaser's option, Seller agrees to waive (and
return to Interventions or IDDRS, as the case may be, if received by
Seller) its management fees accrued pursuant to the Interventions
Contract and the IDDRS Contract which are attributable to the
Transferred Programs (as such term is defined in the
IDDRS/Interventions Purchase Agreement) beginning on the first day
of the month in which the Closing Date occurs and ending at Closing
(the "Interim Management Fees") in exchange for an increase to the
amount of consideration paid to BHS at the Closing under the
Noncompetition Agreement referred to in Section 9.1(q) to be
executed by BHS by an amount equal to such Interim Management Fees.
8. NO FURTHER AMENDMENTS; DEFINED TERMS. As amended by this
Amendment, the Purchase Agreement shall remain in full force and effect. Except
as otherwise specifically defined in this
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Amendment, capitalized terms used in this Amendment have the same meaning as is
ascribed to them in the Purchase Agreement.
IN WITNESS OF THE FOREGOING, the parties hereto have executed this
Amendment on the date first set forth above.
BHS CONSULTING CORP. CORNELL CORRECTIONS, INC.
By__________________________ By__________________________
Xxxxx X. Xxxxx, President
Name:_______________________
Title:________________________
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Xxxxx X. Xxxxx, individually
------------------------------
Xxxxx X. Xxxxx, individually
0000x.00
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XXXXXXXX 3.1(I)
EQUIPMENT
The items identified on the attached lists of computer equipment and furniture
comprise the Equipment.
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SCHEDULE 3.1(III)
CONTRACTS
1. NONE.
* * *
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SCHEDULE 3.3
o Salary and benefit costs incurred by Seller from July 1, 1999 through
the Closing for
Xxxxx Xxxxxxxxxxx:
$32,492.47
o Salary and benefit costs incurred by Seller from October 16, 1999 through
the Closing for Xxxxxx Xxxxxxxx:
$10,260.50
o Salary and benefit costs incurred by Seller from October 16, 1999 through
the Closing for Xxxx Xxxxx:
$6,151.69
o The amount determined by multiplying $100 by the number of hours as to
which Purchaser has requested and has been given access to Seller's Asset
Management staff during the period of October
20, 1999 through the Closing:
$125.00
AGGREGATE AMOUNT: $49,029.66
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SCHEDULE 3.4
ALLOCATIONS
A. TOTAL PURCHASE PRICE:
[As determined pursuant to
Section 3.3 of the
Asset Purchase Agreement]
$1,949,794.99
B. CONSIDERATION FOR ASSETS: [Does not include amounts referred to in
subparts (ii) through (v) of Section 3.3 of the Asset Purchase Agreement]
$1,875,000 LESS (i) $91,000 and (ii) $21,689.75
as set forth in
Schedule 4.2(b), which equals
$1,762,310.25
C. CONSIDERATION FOR NONCOMPETITION AGREEMENT OF BHS CONSULTING CORP.
$25,000 PLUS $113,455.08 (which is the amount
to be added
to the consideration to be paid under the
Noncompetition
Agreement of BHS Consulting Corp. in exchange
for the
waiver or repayment by BHS Consulting Corp. of
certain
management fees), which equals
$138,455.08
D. ALLOCATIONS
1. Class I Assets: $__________
2. Class II Assets: $__________
3. Class III Assets: $ 66,000.00
4. Class IV Assets: $__________
5. Class V Assets: $ 1,834,765.33
Total of Allocatio$1,900,765.33
[this amount should equal the sum of Items B and C
above]
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SCHEDULE 4.2(B)
ACCRUED VACATION PAY
See attached list.
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