EXHIBIT 4.3
FIRST AMENDMENT
TO
STOCK PURCHASE AGREEMENT
This First Amendment to Stock Purchase Agreement (this "Amendment") is
entered into effective as of May 25, 2006, between Xxxxxxx X. Xxx ("Seller"),
sole stockholder of WRC Corporation, a Colorado corporation (the "Company"), and
ENGlobal Corporation, a Nevada corporation ("Purchaser").
RECITALS
A. Seller and Purchaser entered into a Stock Purchase Agreement dated May 25,
2006 (the "Purchase Agreement"), pursuant to which Purchaser purchased all
of the issued and outstanding stock of the Company from Seller and as part
of the Purchase Price, Seller acquired 175,000 shares of Common Stock of
Purchaser.
B. Seller and Purchaser desire to amend Sections 4.8(c), 4.8(d) and 4.8(e),
and to add a new Section 4.8(j), to the Purchase Agreement.
C. Pursuant to Section 6.13 of the Purchase Agreement, the Purchase Agreement
may be amended by the written consent of Seller and Purchaser.
D. Terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the parties hereto
hereby amend the Purchase Agreement as follows:
1. Sections 4.8(c), 4.8(d) and 4.8(e) of the Purchase Agreement are hereby
amended to read in their entirety as follows:
"(c) Within 90 days after Closing, Purchaser shall use its
commercially reasonable best efforts to prepare and file with the
Securities and Exchange Commission (the "SEC"), a shelf registration
statement on Form S-3 (or any replacement registration statement) and
any other documents necessary in the opinion of counsel for the
Purchaser, and use its commercially reasonable best efforts to have
the registration statement declared effective no later than November
30, 2006, so as to permit the registered resale of the Common Stock
following the effective date of the Registration Statement. Seller
shall cooperate in all respects, including provision of information
required to be included in the registration statement, with
Purchaser's efforts to comply with this Section 4.8."
"(d) Notwithstanding the foregoing provisions of this Section
4.8, Purchaser may voluntarily suspend the effectiveness of the
registration statement if Purchaser has been advised by its counsel
that there is a reasonable good faith basis to believe that the
offering of any shares of Common Stock pursuant to the registration
statement would materially adversely affect, or would be improper in
view of (or improper without disclosure in a prospectus), any
transaction or occurrence relating to Purchaser. Thereafter, Purchaser
shall use its commercially reasonable efforts to file an amended or
replacement registration statement within 60 days of the occurrence of
such event and shall use its commercially reasonable efforts to cause
the amendment to be declared effective within 90 days of filing.
Purchaser shall notify Seller to such effect and, upon receipt of such
notice, Seller shall immediately discontinue any sales of Common Stock
pursuant to such registration statement until he has received copies
of a supplemented or amended prospectus or until he is advised in
writing by Purchaser that the then current prospectus may be used and
has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such prospectus."
"(e) If any event occurs that would cause the registration
statement to contain a material misstatement or omission or not to be
effective and useable during the period it is required to be
effective, Purchaser shall promptly notify Seller of such event and,
if requested, Seller shall immediately cease making offers of the
Common Stock and return all prospectuses to Purchaser. Purchaser shall
use its commercially reasonable efforts to file an amendment to the
registration statement within 60 days of the occurrence of such event
and shall use its commercially reasonable efforts to cause the
amendment to be declared effective within 90 days of filing. Purchaser
shall promptly provide Seller with revised prospectuses and, following
receipt of the revised prospectuses, Seller shall be free to resume
making offers of the Common Stock."
2. Section 4.8(j) is hereby added to the Purchase Agreement to read in its
entirety as follows:
"(j) If due to Purchaser's failure to satisfy its commercially
reasonable best efforts or commercially reasonable efforts obligation, as
applicable, a registration statement is not filed on or prior to the applicable
filing deadline or is not declared effective on or prior to the applicable
effectiveness deadline set forth in Sections 4.8(c), 4.8(d) or 4.8(e) (each, an
"Event"), then upon the occurrence of such Event and on every monthly
anniversary thereof until the applicable Event is cured, Purchaser shall pay to
Seller, as liquidated damages and not as a penalty, $3,000 in cash; provided,
however, that the aggregate maximum amount of such liquidated damages over time
may not exceed $12,000. THE PARTIES HERETO AGREE THAT THE LIQUIDATED DAMAGES
PROVIDED FOR IN THIS SECTION 4.8(J) CONSTITUTE A REASONABLE ESTIMATE OF THE
DAMAGES THAT MAY BE INCURRED BY SELLER BY REASON OF THE FAILURE OF A
REGISTRATION STATEMENT TO BE FILED OR DECLARED EFFECTIVE OR AVAILABLE FOR
EFFECTING RESALES OF THE COMMON STOCK IN ACCORDANCE WITH THE PROVISIONS HEREOF."
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3. Except as herein modified and amended, all terms and conditions of the
Purchase Agreement shall remain in full force and effect.
4. This Amendment shall be governed by the laws of the State of Texas,
other than laws that direct the application of the laws of a different state.
The parties consent to the exclusive jurisdiction of the state and federal
courts located in Xxxxxx County, Texas with respect to any controversy relating
to this Amendment.
5. This Amendment may be executed in any number of counterparts and any
party hereto may execute any such counterpart, each of which when executed and
delivered shall be deemed to be an original and all of which counterparts taken
together shall constitute but one and the same instrument. Each such multiple
counterpart of this Amendment may be transmitted via facsimile or other similar
electronic means and a facsimile of the signature of one or more of the
undersigned shall be deemed an original signature for all purposes and have the
same force and effect as a manually-signed original.
* * * * * *
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EXECUTED to be effective as of the date first set forth above.
SELLER:
/s/ Xxxxxxx X. Xxx
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Xxxxxxx X. Xxx
PURCHASER:
ENGLOBAL CORPORATION,
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx,
Chairman of the Board
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