AMENDMENT NO. 1 TO THE STOCK PURCHASE AGREEMENT
Exhibit
10.26a
AMENDMENT
NO. 1 TO THE STOCK PURCHASE AGREEMENT
AMENDMENT NO. 1, dated December 23,
2009 (this “Amendment”), by and
among Selective Insurance Group, Inc., a New Jersey corporation (the “Seller”), Selective
HR Solutions, LLC, a Florida limited liability company formerly known as
Selective HR Solutions, Inc. and a wholly-owned Subsidiary of the Seller (the
“Company”),
Selective HR Solutions II, Inc., a Georgia corporation and wholly-owned
Subsidiary of the Company (“SHRS-II”), Selective
HR Solutions III, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-III”), Selective
HR Solutions IV, Inc., a Maryland corporation and wholly-owned Subsidiary of the
Company (“SHRS-IV”), Selective
HR Solutions V, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-V”), Selective
HR Solutions VI, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-VI”), Selective
HR Solutions VII, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-VII”), Selective
HR Solutions VIII, Inc., a Florida corporation and wholly-owned Subsidiary of
the Company (“SHRS-VIII”),
Selective HR Solutions IX, Inc., a Florida corporation and wholly-owned
Subsidiary of the Company (“SHRS-IX”), Selective
HR Solutions X, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-X”), Selective
HR Solutions XI, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-XI”), Selective
HR Solutions XII, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-XII”), Selective
HR Services, LLC, a limited liability company organized under the laws of the
Commonwealth of Pennsylvania and wholly-owned Subsidiary of the Company (“SHRS-LLC”), and
AlphaStaff Group, Inc., a Florida corporation (the “Purchaser”),
AlphaStaff, Inc., a Florida corporation and wholly-owned Subsidiary of the
Purchaser (“Alpha”), AlphaStaff
Holdings, Inc., a Florida corporation and indirect, wholly-owned Subsidiary of
the Purchaser (“Holdings”), Alpha
NYPEO, Inc., a Florida corporation and indirect, wholly-owned Subsidiary of the
Purchaser (“Alpha-NY”),
AlphaStaff Systems V, Inc., a Florida corporation and indirect, wholly-owned
Subsidiary of the Purchaser (“Systems-V”) and
AlphaStaff 2, Inc., a Florida corporation and indirect, wholly-owned Subsidiary
of the Purchaser (“Alpha-2”) and
AlphaStaff 3, Inc., a Florida corporation and indirect, wholly-owned Subsidiary
of the Purchaser (“Alpha-3”), hereby
amends that certain STOCK PURCHASE AGREEMENT (the “Purchase Agreement”),
dated as of October 27, 2009, by and among Seller, the Company, SHRS-II,
SHRS-III, SHRS-IV, SHRS-V, SHRS-VI, SHRS-VII, SHRS-VIII, SHRS-IX, SHRS-X,
SHRS-XI, SHRS-XII, SHRS-LLC, Purchaser, Alpha, Holdings, Alpha-NY, Systems-V and
Alpha-2.
RECITALS
WHEREAS, capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Purchase Agreement; and
WHEREAS, the parties to the Purchase
Agreement have determined that it is advisable to amend the Purchase Agreement;
and
WHEREAS, Section 11.07 of the Purchase
Agreement provides that the Purchase Agreement may be amended by execution of a
written instrument executed by the parties thereto.
NOW, THEREFORE, in consideration of the
foregoing premises, and the agreements, covenants, representations and
warranties contained in the Purchase Agreement and herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged and accepted, the parties, intending to be legally bound, hereby
agree as follows:
1. The
first paragraph of the Purchase Agreement is hereby amended to read in its
entirety as follows:
“STOCK AND ASSET PURCHASE
AGREEMENT (this “Agreement”), dated as
of October 27, 2009, by and among Selective Insurance Group, Inc., a New Jersey
corporation (the “Seller”), Selective
HR Solutions, Inc., a Florida corporation and wholly-owned Subsidiary of the
Seller (the “Company”), Selective
HR Solutions II, Inc., a Georgia corporation and wholly-owned Subsidiary of the
Company (“SHRS-II”), Selective
HR Solutions III, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-III”), Selective
HR Solutions IV, Inc., a Maryland corporation and wholly-owned Subsidiary of the
Company (“SHRS-IV”), Selective
HR Solutions V, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-V”), Selective
HR Solutions VI, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-VI”), Selective
HR Solutions VII, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-VII”), Selective
HR Solutions VIII, Inc., a Florida corporation and wholly-owned Subsidiary of
the Company (“SHRS-VIII”),
Selective HR Solutions IX, Inc., a Florida corporation and wholly-owned
Subsidiary of the Company (“SHRS-IX”), Selective
HR Solutions X, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-X”), Selective
HR Solutions XI, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-XI”), Selective
HR Solutions XII, Inc., a Florida corporation and wholly-owned Subsidiary of the
Company (“SHRS-XII”), Selective
HR Services, LLC, a limited liability company organized under the laws of the
Commonwealth of Pennsylvania and wholly-owned Subsidiary of the Company (“SHRS-LLC”), and
AlphaStaff Group, Inc., a Florida corporation (the “Purchaser”),
AlphaStaff, Inc., a Florida corporation and wholly-owned Subsidiary of the
Purchaser (“Alpha”), AlphaStaff
Holdings, Inc., a Florida corporation and indirect, wholly-owned Subsidiary of
the Purchaser (“Holdings”), Alpha
NYPEO, Inc., a Florida corporation and indirect, wholly-owned Subsidiary of the
Purchaser (“Alpha-NY”),
AlphaStaff Systems V, Inc., a Florida corporation and indirect, wholly-owned
Subsidiary of the Purchaser (“Systems-V”),
AlphaStaff 2, Inc., a Florida corporation and indirect, wholly-owned Subsidiary
of the Purchaser (“Alpha-2”) and
AlphaStaff 3, Inc., a Florida corporation and indirect, wholly-owned Subsidiary
of the Purchaser (“Alpha-3”).”
2. Section
1.01 of the Purchase Agreement is hereby amended by the deletion of the
definition of “Acquiring
Subsidiaries” in its entirety and the insertion in lieu thereof of the
following:
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““Acquiring
Subsidiaries” means, collectively, Alpha-NY, Xxxxx-0, Xxxxx-0, Holdings
and Systems-V and any other Subsidiaries of the Purchaser designated by the
Purchaser as Acquiring Subsidiaries.”
3. Section
2.03(b) of the Purchase Agreement is hereby amended to read in its entirety as
follows:
“Each of
Purchaser and Seller shall separately allocate the sum of the Purchase Price and
the Assumed Liabilities in a manner reasonably determined in good faith (each,
an “Allocation”) and
shall not be required to agree in writing as to the Allocation.”
4. Section
5.13(a) of the Purchase Agreement is hereby amended to read in its entirety as
follows:
“Prior to
the Closing, the Seller shall cause any contract or arrangement, whether oral or
written, that is set forth in Section 5.13 of the
Disclosure Letter to be terminated or otherwise amended to exclude the Company
and any Company Subsidiaries as a party thereto.”
5. Section
9.04 of the Purchase Agreement is hereby amended to read in its entirety as
follows:
“Limits on
Indemnification
. Notwithstanding
anything to the contrary contained in this Agreement, except as set forth
below: (a) an Indemnifying Party shall not be liable for any
claim for indemnification pursuant to Section 9.02 or 9.03, unless and
until the aggregate amount of indemnifiable Losses which may be recovered from
the Indemnifying Party equals or exceeds $100,000, after which the Indemnifying
Party shall be liable only for those Losses in excess of $100,000; (b) no
Losses may be claimed under Section 9.02 or 9.03 by an
Indemnified Party or shall be reimbursable by an Indemnifying Party or shall be
included in calculating the aggregate Losses set forth in clause (a) above
other than Losses in excess of $5,000 resulting from any single or aggregated
claims arising out of the same facts, events or circumstances; and (c) the
maximum amount of indemnifiable Losses which may be recovered from an
Indemnified Party arising out of or resulting from the causes set forth in Section 9.02 or 9.03, as the case may
be, shall be an amount equal to $2,225,000. The provisions of this Section 9.04 shall
not apply with respect to indemnification (A) of either party for Taxes, provided that an Indemnifying
Party shall not be liable for any claim for indemnification for Taxes unless and
until the aggregate amount of indemnifiable Losses (including Losses other than
for Taxes) which may be recovered from the Indemnifying Party equals or exceeds
$100,000, after which the Indemnifying Party shall be liable only for those
Losses in excess of $100,000, (B) by the Seller of the Purchaser for Losses
arising from or related to workers’ compensation insurance and workers’
compensation claims, including claims incurred prior to the Closing Date but not
reported until thereafter, (C) by the Seller of the Purchaser for (x) Litigation
Losses, (y) Liabilities resulting directly or indirectly from the provision by
the Purchaser to the Seller of inaccurate information pursuant to Section 3.27(i), or
(z) Losses relating to any failure of the Company or the Company Subsidiaries,
prior to the Closing Time, to fully vest participants in accordance with plan
terms on the discontinuance of employer contributions to the Company’s
retirement plans (provided, in the case of clause (z), that the Purchaser has
afforded the Seller both the ability to control the remediation of any such
event at the Seller’s expense and through counsel of the Seller’s choice in
consultation with the Purchaser and the Purchaser’s counsel, respectively, and
reasonable cooperation in connection therewith), or (D) by the Purchaser of the
Seller for Liabilities (x) resulting directly or indirectly from the provision
by the Purchaser to the Seller of inaccurate information pursuant to Section 5.09
(provided the Seller has not terminated its obligations under Section 5.09(c)
pursuant to Section 5.09(e)), or (y) relating to the COBRA obligations of the
Purchaser or amounts payable pursuant to Section
6.03.”
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6. Except
as specifically amended hereby, the terms and provisions of the Purchase
Agreement shall continue and remain in full force and effect and the valid and
binding obligation of the parties thereto in accordance with its
terms. All references in the Purchase Agreement (and in any other
agreements, documents and instruments entered into in connection therewith) to
the “Purchase Agreement” shall be deemed for all purposes to refer to the
Purchase Agreement, as amended by this Amendment.
7. This
Amendment may be executed and delivered (including by facsimile or other
electronic transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original, but all of which taken together shall constitute one
and the same agreement.
8. This
Amendment shall be governed by, and construed in accordance with, the laws of
the State of Florida applicable to contracts executed in and to be performed in
that State.
[SIGNATURE
PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Seller
and the Purchaser have caused this Amendment to be executed as of the date first
written above by their respective officers thereunto duly
authorized.
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SELLER
AND AFFILIATES
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SELECTIVE
INSURANCE GROUP, INC.
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By:
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/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx
X. Xxxxxxxx
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Title: Executive
Vice President, Chief Financial
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Officer
and Treasurer
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SELECTIVE
HR SOLUTIONS, LLC
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By:
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/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: President
and Chief Executive Officer
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SELECTIVE
HR SOLUTIONS II, INC.
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By:
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/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: President
and Chief Executive Officer
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SELECTIVE
HR SOLUTIONS III, INC.
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By:
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/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: President
and Chief Executive Officer
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SELECTIVE
HR SOLUTIONS IV, INC.
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By:
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/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: President
and Chief Executive Officer
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SELECTIVE
HR SOLUTIONS V, INC.
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By:
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/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: President
and Chief Executive Officer
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SELECTIVE
HR SOLUTIONS VI, INC.
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By:
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/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: President
and Chief Executive Officer
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SELECTIVE
HR SOLUTIONS VII, INC.
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By:
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/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: President
and Chief Executive Officer
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SELECTIVE
HR SOLUTIONS VIII, INC.
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By:
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/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: President
and Chief Executive Officer
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SELECTIVE
HR SOLUTIONS IX, INC.
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By:
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/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: President
and Chief Executive Officer
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SELECTIVE
HR SOLUTIONS X, INC.
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By:
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/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: President
and Chief Executive
Officer
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SELECTIVE
HR SOLUTIONS XI, INC.
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By:
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/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: President
and Chief Executive Officer
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SELECTIVE
HR SOLUTIONS XII, INC.
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By:
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/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: President
and Chief Executive Officer
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SELECTIVE
HR SERVICES, LLC
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By: Selective
HR Solutions, LLC
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Its: Sole
Member
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By:
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/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: President
and Chief Executive Officer
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PURCHASER
AND AFFILIATES
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ALPHASTAFF
GROUP, INC.
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By:
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/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
President and Chief Executive Officer
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ALPHASTAFF,
INC.
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By:
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/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
President and Chief Executive
Officer
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ALPHASTAFF
HOLDINGS, INC.
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By:
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/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
President and Chief Executive Officer
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ALPHA
NYPEO, INC.
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By:
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/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
President and Chief Executive Officer
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ALPHASTAFF
SYSTEMS V, INC.
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By:
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/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
President and Chief Executive Officer
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ALPHASTAFF
2, INC.
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By:
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/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
President and Chief Executive Officer
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ALPHASTAFF
3, INC.
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By:
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/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
President and Chief Executive
Officer
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