AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER
Exhibit
2.5
AMENDMENT
NO. 1 TO THE
Amendment
No. 1, dated as of January 28, 2011 (this “Amendment”), to the
Agreement and Plan of Merger, dated as of January 10, 2011 ( the “Original Merger
Agreement”, and as amended by this Amendment or otherwise, this “Agreement”) by and
among TS STAFFING CORP., a Florida corporation (“Parent”), TRI-DIAMOND
STAFFING INC., a Florida corporation and a wholly owned subsidiary of Parent
(the “Company”), DIAMOND
STAFFING, INC., a Massachusetts corporation and wholly owned subsidiary of the
Company (“Diamond
Staffing”), CORPORATE RESOURCE SERVICES, INC., a Delaware corporation
(“Purchaser”),
and DIAMOND STAFFING SERVICES, INC., a Delaware corporation and wholly owned
subsidiary of Purchaser (“Merger
Subsidiary”). Capitalized terms used herein and not otherwise
defined shall have the respective meanings assigned to them by the Original
Merger Agreement.
Recital
WHEREAS,
each of the parties to the Original Merger Agreement wish to amend such
agreement as more particularly described herein.
NOW
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
undersigned parties hereby agree as follows:
1. Section
6.11 of the Original Merger Agreement is hereby amended by deleting such Section
in its entirety and substituting the following in its place:
“6.11 Company
Dividend. Immediately prior to the Closing, the Company shall
set a record date (which date shall be prior to the Closing Date) and declare a
dividend to Parent in an amount equal to (a) ten percent (10%) of the Company’s
aggregate amount of accounts receivable outstanding at the close of business on
the Business Day immediately preceding the Closing Date, less (b) five percent (5%), but
which amount shall not be in excess of $2,700,000 (the “Dividend Amount”),
which dividend obligation shall be payable by the Surviving Corporation after
the Closing Date in four equal installments, with each installment payable on a
date that is within three (3) Business Days of the end of each month during the
120 day period following the Closing Date. If, in the good faith
determination of Purchaser, such payments are prohibited by Law at any time, the
Surviving Corporation will delay such payment or payments until such time as the
Purchaser determines, in good faith, that the resumed payment of such payments
will not result in the violation of any Law.”
2. Except
as expressly amended hereby, the Original Merger Agreement shall continue in
full force and effect in accordance with the terms hereof.
3. This
Amendment shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to any choice of law or conflict of law
provision or rule that would cause application of the laws of any jurisdiction
other than the State of New York.
[SIGNATURE
PAGE FOLLOWS]
IN WITNESS WHEREOF, each of
the parties hereto has caused this Amendment to be duly executed as of the date
first written above.
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By:
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/s/ Xxx X. Xxxxxxxx
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Name: Xxx
X. Xxxxxxxx
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Title:
Chief Executive Officer
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DIAMOND
STAFFING SERVICES, INC.
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By:
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/s/ Xxx X. Xxxxxxxx
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Name: Xxx
X. Xxxxxxxx
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Title: Chief
Executive Officer
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TS
STAFFING CORP.
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By:
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/s/ Xxxxxx
Xxxxxxx
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Name: Xxxxxx
Xxxxxxx
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Title:
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TRI-DIAMOND
STAFFING INC.
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By:
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/s/ Xxxxxx
Xxxxxxx
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Name: Xxxxxx
Xxxxxxx
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Title: President
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DIAMOND
STAFFING, INC.
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By:
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/s/ Xxxxxx
Xxxxxxx
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Name: Xxxxxx
Xxxxxxx
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Title:
President
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[Signature
Page to Amendment No. 1 to Merger Agreement]
