SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)(1)
COMFORCE CORPORATION
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(Name of issuer)
COMMON STOCK, $.01 PAR VALUE
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(Title of class of securities)
544118
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(CUSIP number)
DAVID J. ADLER, ESQUIRE
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
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(Name, address and telephone number of person
authorized to receive notices and communications)
September 25, 1998
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
NOTE. Six copies of this statement, including all exhibits, should be
filed with the Commission. SEE Rule 13d-1(a) for other parties to whom copies
are to be sent.
(Continued on following pages)
Exhibit Index Appears on Page 8.
- ---------------------------
(1)The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, SEE the
NOTES).
<PAGE>
SCHEDULE 13D
CUSIP No. 544118
================================================================================
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
John C. Fanning
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OR ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY
EACH
REPORTING
PERSON WITH
------------------------------------------------------------------
8 SHARED VOTING POWER
4,693,082
------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,693,082
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
4,693,082
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
29.7%
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14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 544118
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
Fanning Asset Partners, L.P.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
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3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OR ORGANIZATION
Georgia
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY
EACH
REPORTING
PERSON WITH
--------------------------------------------------------------------
8 SHARED VOTING POWER
1,133,122
--------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,133,122
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,133,122
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.2%
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14 TYPE OF REPORTING PERSON*
PN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 544118
================================================================================
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
John C. Fanning Irrevocable Trust
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
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3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OR ORGANIZATION
Florida
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY
EACH
REPORTING
PERSON WITH
--------------------------------------------------------------------
8 SHARED VOTING POWER
4,693,082
--------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,693,082
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
4,693,082
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
29.7%
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14 TYPE OF REPORTING PERSON*
OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 544118
================================================================================
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
Harry Maccarrone
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION
United States
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY
EACH
REPORTING
PERSON WITH
--------------------------------------------------------------------
8 SHARED VOTING POWER
4,693,082
--------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,693,082
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
4,693,082
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
29.7%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
This Amendment No. 1 ("Amendment") amends the statement on Schedule 13D
filed by John Fanning (the "Reporting Person") with the Commission on September
14, 1998 with respect to shares of Common Stock, par value $.01 per share (the
"Common Stock"), of COMFORCE Corporation. This Amendment supplements and amends
the information set forth in the original statement by restating the Items or
subsections thereof set forth herein. All capitalized terms shall have the
meanings set forth in the original statement on Form 13D.
Item 1. Security and Issuer.
This statement relates to the Common Stock, par value $.01 per share (the
"Common Stock"), of COMFORCE Corporation, a Delaware corporation (the "Issuer").
The principal executive offices of the Issuer are located at 415 Crossways Park
Drive, Woodbury, New York 11797.
Item 2. Identity and Background.
(a) John C. Fanning; Fanning Asset Partners, L.P., a Georgia limited
partnership (the "Partnership"); John C. Fanning Irrevocable Trust (the "Trust")
and Harry Maccarrone, as trustee of the Trust (the "Trustee").
(b) The Reporting Person's address is 3505 South Ocean Beach Blvd.,
Highland Beach, Florida 33487; the Partnership's business address is Northern
Trust Plaza, Suite 4160, Boca Raton, Florida 33431; the Trust's business address
is c/o COMFORCE Corporation, 415 Crossways Park Drive, P.O. Box 9006, Woodbury,
New York 11797, Attention: Harry Maccarrone and the Trustee's address is c/o
COMFORCE Corporation, 415 Crossways Park Drive, P.O. Box 9006 Woodbury, New York
11797.
(c) The Reporting Person is the Chairman and Chief Executive Officer of
the Issuer, at the Issuer's offices at 415 Crossways Park Drive, P.O. Box 9006,
Woodbury, New York 11797. The Issuer is principally engaged in the business of
providing supplemental staffing and related services to businesses, governmental
agencies and other organizations. The Partnership, whose address is given in
Item 2(b), was formed to hold and manage certain assets of the Reporting Person
and members of his family. The Trust, whose address is given in Item 2(b), was
formed to hold and manage certain assets of the Reporting Person and members of
his family, and is the general partner of the Partnership. The Trustee is the
Vice President of Finance of a subsidiary of the Issuer and a director of the
Issuer.
(d) During the last five years, none of the Reporting Person, the
Partnership, the Trust and the Trustee have been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
(e) During the last five years, none of the Reporting Person, the
Partnership, the Trust and the Trustee have been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding were and are subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
(f) Each of the Reporting Person and the Trustee is a citizen of the
United States of America.
Item 3. Source and Amount of Funds or Other Consideration.
Each of the Partnership and the Trust used its personal funds in the
aggregate amount of $25,000,059.10 to purchase an aggregate of 3,778,086 shares
of Common Stock.
Item 4. Purpose of Transaction.
(a) There are no present plans by the Reporting Person, the Partnership,
the Trust or the Trustee to acquire or dispose of any shares of Common Stock.
<PAGE>
(b) There are no present plans by the Reporting Person, the Partnership,
the Trust or the Trustee to engage in any extraordinary corporate transactions
involving the Issuer or its subsidiaries.
(c) There are no present plans by the Reporting Person, the Partnership,
the Trust or the Trustee to engage in a sale or transfer of any material amount
of the assets of the Issuer or its subsidiaries.
(d) Three of the sellers of the 3,778,086 shares of Common Stock purchased
by the Partnership and the Trust, James L. Paterek, the former Chairman and a
former director of the Issuer, Christopher P. Franco, the former Chief Executive
Officer and a former director of the Issuer, and Michael Ferrentino, the former
President and a former director of the Issuer, resigned from their positions as
officers and directors of the Issuer upon completion of the transaction which
occurred on September 25, 1998. The Reporting Person has been appointed Chairman
and Chief Executive Officer of the Issuer and has been elected to the Board of
Directors of the Issuer. The Board of Directors of the Issuer has been increased
from eight members to nine members and the Reporting Person has designated three
other individuals to fill the remaining vacancies. Five of the eight directors
that were directors prior to the transaction are continuing to serve on the
Issuer's Board of Directors.
(e) None of the Reporting Person, the Partnership, the Trust or the
Trustee plans to change the Issuer's present capitalization or dividend
policies.
(f) None of the Reporting Person, the Partnership, the Trust or the
Trustee plans to change the Issuer's business or corporate structure other then
as may be described in response to item 4(e).
(g) Not applicable.
Item 5. Interest in Securities of the Issuer.
(a) On September 25, 1998, the Partnership and the Trust acquired an
aggregate of 3,778,086 shares of Common Stock. As of such date, the Reporting
Person, the Partnership, the Trust and the Trustee beneficially owned an
aggregate of 4,693,082 shares of Common Stock. This constituted approximately
29.7% of the 15,790,747 shares of Common Stock outstanding as of July 31, 1998,
as reported in the Issuer's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998. The Partnership and Trust previously acquired 914,996 shares of
the Issuer in November 1997 upon acceptance of the Issuer's tender offer to
purchase shares of Uniforce Services, Inc. then held by the Reporting Person for
cash and Common Stock of the Issuer (based on a price of $7.67 per share of
Common Stock).
(b) As of September 25, 1998, the Reporting Person, the Trust and the
Trustee had the shared power to vote or direct the vote, and the shared power to
dispose or to direct the disposition of, all of the shares of Common Stock
beneficially owned by the Reporting Person, the Trust and the Partnership. As of
such date, the Partnership had the shared power to vote or direct the vote, and
the shared power to dispose or direct the disposition of 1,133,122 shares of
Common Stock.
(c) Except as provided herein, none of the Reporting Person, the
Partnership, the Trust and the Trustee effected any transactions in the Common
Stock during the past 60 days.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
On September 4, 1998, the Reporting Person entered into a Stock Purchase
and Sale Agreement with the Issuer, James L. Paterek, Christopher P. Franco,
Michael Ferrentino and Kevin W. Kiernan under which such individuals agreed to
sell 3,778,086 shares of Common Stock to the Reporting Person for
$25,000,059.10. Such transaction was completed on September 25, 1998.
<PAGE>
Item 7. Materials to be Filed as Exhibits.
(a) Joint Filing Agreement dated September 28, 1998.
(b) Stock Purchase and Sale Agreement dated September 4, 1998.
<PAGE>
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: September 28, 1998
/S/ JOHN C. FANNING
---------------------------------------
JOHN C. FANNING
FANNING ASSET PARTNERS, L.P.
By: John C. Fanning Irrevocable Trust,
General Partner
By:/s/ John C. Fanning
------------------------------------
John C. Fanning, Attorney-in-Fact
JOHN C. FANNING IRREVOCABLE TRUST
By:/s/ John C. Fanning
------------------------------------
John C. Fanning, Attorney-in-Fact
/s/ Harry Maccarrone
---------------------------------------
HARRY MACCARRONE
<PAGE>
EXHIBIT A
---------
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k) of Regulation 13D-G of the Securities
Exchange Act of 1934, the persons or entities below agree to the joint filing on
behalf of each of them of this Statement on Schedule 13D (including any and all
amendments thereto) with respect to the Common Stock of COMFORCE Corporation, by
John C. Fanning, and further agree that this Joint Filing Agreement is included
as an Exhibit to such joint filing. In evidence thereof, the undersigned, being
duly authorized, hereby execute this Joint Filing Agreement this 28th day of
September, 1998.
/S/ JOHN C. FANNING
---------------------------------------
JOHN C. FANNING
FANNING ASSET PARTNERS, L.P.
By: John C. Fanning Irrevocable Trust,
General Partner
By:/s/ Harry Maccarrone
------------------------------------
Harry Maccarrone, Trustee
JOHN C. FANNING IRREVOCABLE TRUST
By:/s/ Harry Maccarrone
------------------------------------
Harry Maccarrone, Trustee
/s/ Harry Maccarrone
---------------------------------------
HARRY MACCARRONE
<PAGE>
EXHIBIT B
STOCK PURCHASE AND SALE AGREEMENT (the "Agreement") dated
as of September 4, 1998 by and among Mr. James L. Paterek ("JP"), Mr.
Christopher P. Franco ("CF"), Mr. Michael Ferrentino ("MF") and Mr. Kevin
Kiernan ("KK," and together with JP, CF and MF, "Sellers," and each
individually, a "Seller"), COMFORCE Corporation, a Delaware corporation (the
"Company"), and Mr. John C. Fanning ("Buyer").
W I T N E S S E T H:
WHEREAS, Sellers own in the aggregate 3,778,084 shares of
the Company's common stock, $.01 par value per share (the "Stock"); and WHEREAS,
Sellers desire to sell to Buyer, and Buyer desires to purchase from Sellers,
such Stock on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, the
mutual covenants and agreements contained herein and other good, valuable and
sufficient consideration, the receipt of which is hereby acknowledged, Sellers,
the Company and Buyer (collectively, the "Parties" and, sometimes individually,
a "Party"), intending to be legally bound, hereby agree as follows:
SECTION 1 - PURCHASE AND SALE OF STOCK; CLOSING
1.1 CLOSING. The closing of the transactions contemplated hereby (the
"Closing") shall take place on the first business day following receipt of all
necessary approvals, but in no event later than November 30, 1998, at the
offices of Kelley Drye & Warren LLP, 101 Park Avenue, New York, New York, or
such other place or time as shall be mutually agreed upon by the Parties.
<PAGE>
1.2 PURCHASE AND SALE OF STOCK; RELATED DELIVERIES; PURCHASE PRICE.
Subject to the terms and conditions set forth herein, at the Closing, Sellers
shall sell, transfer, assign and deliver to Buyer, and Buyer shall purchase from
Sellers and accept all right, title and interest in and to the Stock. In
consideration for the sale, assignment and delivery of the Stock, at the
Closing, Buyer shall pay to Sellers for the Stock an aggregate cash purchase
price (the "Purchase Price") of Twenty-Five Million Fifty-Nine Dollars and Ten
Cents ($25,000,059.10).
1.3 PAYMENT. At the Closing, Buyer shall pay the Purchase Price to
Sellers by wire transfer of immediately available Federal Reserve funds to the
accounts of Sellers as designated in writing thereby, to be delivered to Buyer
no later than one business day prior to the Closing. The Purchase Price shall be
allocated among Sellers as set forth on SCHEDULE 1.3 attached hereto.
1.4 CLOSING DELIVERIES OF SELLERS. At the Closing, Sellers shall
deliver, or cause to be delivered, to Buyer:
(a) the certificates representing the Stock duly endorsed in
blank or accompanied by stock transfer powers in proper form duly endorsed in
blank and accompanied by any requisite stock transfer stamps paid by Sellers;
(b) resignations from each Seller from their positions as board
members of the Company;
(c) true and complete copies of Amendments to each of the
Employment Agreements dated December 1, 1997, by and between the Company and JP,
CF and MF, respectively, in the forms of Exhibits A, B and C annexed hereto,
respectively (collectively, the "Employment Agreements Amendments"), duly
executed by the Company and each respective Seller; and
<PAGE>
(d) all additional documents reasonably deemed by Buyer to be
necessary to effect and evidence the sale, assignment and transfer of the Stock
to Buyer pursuant to this Agreement.
1.5 CLOSING DELIVERY OF BUYER. At the Closing, Buyer shall wire
transfer the Purchase Price as provided in Section 1.3 hereof.
1.6 CLOSING DELIVERIES OF THE COMPANY. At the Closing, the Company
shall cause to be delivered:
(a) To Sellers the Employment Agreement Amendments, duly executed
by the Company; and
(b) To Buyer a letter, as of the Closing, in the form of Exhibit
D annexed hereto (the "Section 203 Letter"), duly executed by the Company, that
shall provide that the Company approves the transactions contemplated hereby and
that Buyer does not and shall not constitute an "interested stockholder" for the
purposes of Section 203 of the General Corporation Law of the State of Delaware.
SECTION 2 - REPRESENTATIONS AND WARRANTIES OF SELLERS
2.1 TITLE TO THE STOCK. Each of the shares of Stock set forth on
Schedule 2.1 is owned of record or held beneficially by each Seller as set forth
opposite such Seller's name listed on Schedule 2.1, and each Seller holds good,
valid and marketable title to such shares of Stock listed thereon, and except as
set forth on Schedule 2.1, free and clear of any lien, claim, charge, security
interest, pledge, defect in title, covenant or other restriction of any kind
whatsoever (collectively, "Encumbrances"). Each Seller possesses full authority
and legal right to sell the entire legal and beneficial ownership of his shares
of Stock. Upon transfer of the shares of Stock to Buyer hereunder at the
Closing, Buyer will own, and will have good and marketable title to,
<PAGE>
the entire legal and beneficial interest in the Stock, free and clear of
Encumbrances except as may be granted by Buyer or be binding upon him.
2.2 ENFORCEABILITY OF AGREEMENT. Each Seller has all requisite power,
authority and capacity to enter into this Agreement and all agreements,
instruments and documents being or to be executed and delivered under this
Agreement or in connection herewith (collectively, "Seller Ancillary
Agreements") and to perform his obligations hereunder and thereunder. This
Agreement and each Seller Ancillary Agreement, when duly executed and delivered
by all the Parties, will constitute a valid and legally binding obligation of
each Seller, enforceable in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, reorganization and moratorium laws and other laws of
general application affecting the enforcement of creditors' rights generally and
(ii) the fact that equitable remedies or relief (including, without limitation,
the remedy of specific performance) are subject to the discretion of the court
from which such relief may be sought. Neither the execution and delivery of this
Agreement or any of the Seller Ancillary Agreements nor the performance hereof
or thereof will constitute or result in the breach of any term, condition or
provision of, or constitute a default under any material agreement or other
instrument to which such Seller is a party or under any law, regulation,
judgment or order binding upon such Seller or result in the creation of any
Encumbrance in respect of the Stock.
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF BUYER
3.1 ENFORCEABILITY OF AGREEMENT. Buyer has all requisite power,
authority and capacity to enter into this Agreement and all agreements,
instruments and documents being or to be executed and delivered under this
Agreement or in connection herewith (collectively the "Buyer Ancillary
Agreements") and to perform his obligations hereunder and thereunder. This
<PAGE>
Agreement and each Buyer Ancillary Agreement, when duly executed and delivered
by all the Parties, will constitute a valid and legally binding obligation of
Buyer, enforceable in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, reorganization and moratorium laws and other laws of
general application affecting the enforcement of creditors' rights generally and
(ii) the fact that equitable remedies or relief (including, without limitation,
the remedy of specific performance) are subject to the discretion of the court
from which such relief may be sought. Neither the execution and delivery of this
Agreement or any of the Buyer Ancillary Agreements nor the performance hereof or
thereof will constitute or result in the breach of any term, condition or
provision of, or constitute a default under any material agreement or other
instrument to which Buyer is a party or under any law, regulation, judgment or
order binding upon Buyer or result in the creation of any Encumbrance against
the Stock.
SECTION 4 - REPRESENTATIONS AND WARRANTIES OF THE COMPANY
4.1 ENFORCEABILITY OF AGREEMENT. The Company has all requisite power
authority and capacity to enter into this Agreement and the Employment
Agreements and Section 203 Letter and all agreements, instruments and documents
being or to be executed and delivered thereby under this Agreement or in
connection herewith (collectively the "Company Agreements") and to perform its
obligations hereunder or thereunder. This Agreement and each Company Agreement,
when duly executed and delivered by all the Parties, will constitute a valid and
legally binding obligation of the Company, enforceable in accordance with its
terms, subject to (i) applicable bankruptcy, insolvency, reorganization and
moratorium laws and other laws of general application affecting the enforcement
of creditors' rights generally and (ii) the fact that equitable remedies or
relief (including, without limitation, the remedy of specific performance) are
subject to the discretion of the court from which such relief may be sought.
Neither the
<PAGE>
execution and delivery of this Agreement or any Company Agreement nor the
performance hereof or thereof will constitute or result in the breach of any
term, condition or provision of, or constitute a default under any material
agreement or other instrument to which the Company is a party or under any law,
regulation, judgment or order binding upon the Company or result in the creation
of any Encumbrance against the Stock.
SECTION 5 - CLOSING CONDITIONS AND OBLIGATIONS
5.1 CONDITIONS TO SELLERS' OBLIGATIONS. The obligations of Sellers
under this Agreement shall be subject to the satisfaction, at or before the
Closing, of each of the following conditions:
(a) The Buyer's representations and warranties set forth in this
Agreement shall have been true and correct in all material respects when made
and shall be true and correct in all material respects at and as of the Closing
as if such representations and warranties were made as of the Closing.
(b) Each of Buyer and the Company shall have performed and
complied in all material respects with all agreements and obligations required
to be so performed or complied with by each of the foregoing at or prior to the
Closing including, without limitation, the delivery of the Employment Agreement
Amendments, duly executed by the Company.
(c) There shall be no effective order, decree or injunction of a
court of competent jurisdiction that prevents or delays the consummation of the
transactions contemplated by this Agreement.
5.2 CONDITIONS TO BUYER'S OBLIGATIONS. The obligations of Buyer under
this Agreement shall be subject to the satisfaction, at or before the Closing,
of each of the following conditions:
<PAGE>
(a) Each of the Sellers' and the Company's representations and
warranties set forth in this Agreement shall have been true and correct in all
material respects when made and shall be true and correct in all material
respects at and as of the Closing as if such representations and warranties were
made as of the Closing.
(b) Each of Sellers and the Company shall have performed and
complied in all material respects with all agreements and obligations required
to be so performed or complied with by each of the foregoing at or prior to the
Closing including, without limitation, the delivery of the documents and
instruments set forth in Sections 1.4 and 1.6 hereof.
(c) There shall be no effective order, decree or injunction of a
court of competent jurisdiction that prevents or delays the consummation of the
transactions contemplated by this Agreement.
(d) Buyer shall have received copies of the consents required by
the HSR Act and the Company's credit facility with Heller Financial, Inc. dated
November 27, 1997 (the "Heller Facility"), in respect of this Agreement and the
transactions contemplated hereby.
(e) The Board of Directors of the Company shall have duly
approved this Agreement and each Company Agreement and the consummation of the
transactions contemplated hereby and thereby.
(f) The Board of Directors of the Company shall have approved the
transactions contemplated by this Agreement for purposes of Section 203 of the
Delaware General Corporation Law.
(g) Buyer and three designees shall have been elected as
Directors of the Company following the resignation of JP, CF and MF from the
Board of Directors of the Company.
<PAGE>
(h) The Voting Agreement dated December 11, 1995 entered into by
KK, CF and MF shall have been terminated on or before the Closing and Buyer
shall receive on the Closing a fully executed agreement in respect of such
termination in form reasonably satisfactory to Buyer.
5.3 HRS ACT FILINGS. Sellers shall or shall cause the Company and
Buyer shall, as promptly as practicable, file, or cause to be filed,
Notification and Report Forms under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 as amended (the "HSR Act") with the Federal Trade Commission (the
"FTC") and the Antitrust Division of the United States Department of Justice
(the "Antitrust Division") in connection with the transactions contemplated by
this Agreement, and the other agreements contemplated hereby and thereby, and
will use their respective best efforts (it being understood by all parties
hereto that time is of the essence) to respond as promptly as practicable to all
inquiries received from the FTC or the Antitrust Division for additional
information or documentation and to cause the waiting period under the HSR Act
to terminate or expire at the earliest possible date. Sellers and Buyer will
each furnish to the other such necessary information and reasonable assistance
as the other may request in connection with the preparation of necessary filings
or submissions to any government or regulatory agency, including, without
limitation, any filings necessary under the provisions of the HSR Act.
<PAGE>
SECTION 6 - ADDITIONAL AGREEMENTS OF SELLERS
(a) Each of Sellers agrees that, unless and until this Agreement
has been terminated in accordance with its terms, they shall not, directly or
indirectly, solicit, initiate or participate in any discussions or negotiations
with, or provide information to, any corporation, partnership, person, entity or
group concerning any proposal to acquire such Sellers' Stock.
(b) Sellers shall as promptly as practicable make any and all
other filings with and submissions to governmental bodies and regulatory
agencies that are required to be made by Sellers in connection with the
execution, delivery and performance of this Agreement, including but not limited
to the HSR Act.
SECTION 7 - ADDITIONAL AGREEMENTS OF BUYER
Buyer shall as promptly as practicable make any and all other filings
with and submissions to governmental bodies and regulatory agencies that are
required to be made by Buyer in connection with the execution, delivery and
performance of this Agreement, including, but not limited to, the HSR Act.
SECTION 8 - PRE-CLOSING COVENANTS
(a) The Company shall as promptly as practicable take all actions
necessary, and make any and all filings with and submissions to governmental
bodies, regulatory agencies and any other third party including, without
limitation, in respect of the Heller Facility, that are required to be made by
the Company in connection with the execution, delivery and performance of this
Agreement including, without limitation, such actions, filings and submissions
in respect of the HSR Act, the Section 203 Letter and the composition of the
Company's Board of Directors as contemplated by Section 5.2(g) hereof.
<PAGE>
(b) The Company shall pay any and all applicable filing fees,
when due, in connection with the Notification and Report Forms to be filed
pursuant to the HSR Act in connection with the transactions contemplated by this
Agreement.
SECTION 9 - NOTICES
All notices required or permitted to be given pursuant to this
Agreement shall be given in writing, shall be transmitted by personal delivery,
by registered or certified mail, postage prepaid and shall be addressed as
follows:
When Buyer is the intended recipient:
Mr. John C. Fanning
3505 South Ocean Blvd.
Highland Beach, FL.
33487
With a copy to:
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, NY 10022
Attention: David J. Adler, Esq.
When a Seller is the intended recipient:
Mr. James L. Paterek
2001 Marcus Avenue
Lake Success, NY 11042
Mr. Christopher P. Franco
2001 Marcus Avenue
Lake Success, NY 11042
Mr. Michael Ferrentino
2001 Marcus Avenue
Lake Success, NY 11042
Mr. Kevin Kiernan
2001 Marcus Avenue
Lake Success, NY 11042
<PAGE>
When the Company is the intended recipient:
COMFORCE Corporation
2001 Marcus Avenue
Lake Success, NY 11042
Attention: Chairman of the Corporation
With a copy to:
Kelley Drye & Warren LLP
Two Stamford Plaza
281 Tresser Blvd.
Stamford, CT 06901
Attention: M. Ridgeway Barker, Esq.
A Party may designate a new address to which notices required or permitted to be
given pursuant to this Agreement shall thereafter be transmitted by giving
written notice to that effect to the other Parties. Each notice transmitted in
the manner described in this Section 9 shall be deemed to have been given,
received and become effective for all purposes at the time it shall have been
(i) delivered to the addressee as indicated by the return receipt (if
transmitted by mail), the affidavit of the messenger (if transmitted by personal
delivery) or the telecopier generated confirmation (if transmitted by
telecopier) or (ii) presented for delivery to the addressee as so indicated
during normal business hours, if such delivery shall have been refused for any
reason.
SECTION 10 - BROKERAGE FEES; CERTAIN EXPENSES
10.1 BROKERAGE FEES. Each Party agrees to indemnify the other
Party for, and to hold the other Party harmless from, any claim or liability for
any fee, commission, compensation or other payment by any broker, finder or
similar agent who claims to have been, or who was in fact, engaged by or on
behalf of it in connection with the transactions contemplated hereby.
10.2 CERTAIN EXPENSES. Except as otherwise provided in this
Agreement and regardless of whether the transactions contemplated by this
Agreement are consummated, each Party agrees
<PAGE>
to pay all expenses, fees and costs (including, without limitation, legal and
accounting expenses) incurred by it in connection with the transactions
contemplated hereby. Each Party further agrees that the Company will be
responsible for its own fees and expenses in connection with the transactions
contemplated hereby.
SECTION 11 - GOVERNING LAW; FORUM
The validity, interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of New York (without giving
effect to the laws, rules or principles of the State of New York regarding
conflicts of laws). Each Party agrees that any proceeding arising out of or
relating to this Agreement or the breach or threatened breach of this Agreement
shall be commenced and prosecuted in a Federal court in the State of New York.
Each Party consents and submits to the exclusive personal jurisdiction of any
such court in respect of such proceeding. Each Party consents to service of
process upon it with respect to any such proceeding by registered mail, return
receipt requested, and by any other means permitted by applicable laws and
rules. Each Party waives any objection that it may now or hereafter have to the
laying of venue of any such proceeding in any such court and any claim that it
may now or hereafter have that any such proceeding in any such court has been
brought in an inconvenient forum. Each Party waives any right to trial by jury
in any such proceedings.
SECTION 12 - BINDING EFFECT; ASSIGNMENT; THIRD-PARTY BENEFICIARIES
This Agreement shall be binding upon the Parties and their respective
successors and assigns and shall inure to the benefit of the Parties and their
respective successors and permitted assigns. No Party hereto shall assign any of
his rights or delegate any of his duties under this Agreement (by operation of
law or otherwise) without the prior written consent of the other Parties, except
that Buyer may assign his right to purchase (but not be relieved of his
<PAGE>
obligations) to any affiliated or related party, including a trust for the
benefit of his family member. Any assignment of rights or delegation of duties
under this Agreement by a Party without the prior written consent of the other
Parties (if required) shall be void. No person shall be, or be deemed to be, a
third-party beneficiary of this Agreement.
SECTION 13 - ENTIRE AGREEMENT
This Agreement, together with the Exhibits and Schedules attached
hereto, and the agreements, certificates, instruments and documents delivered
pursuant hereto or thereto constitutes the entire contract among the Parties
with respect to the subject matter hereof and cancels and supersedes all of the
previous or contemporaneous contracts, representations, warranties and
understandings (whether oral or written) by, between or among the Parties with
respect to the subject matter hereof and there are no other agreements,
representations, warranties and understandings among the Parties except as set
forth herein.
SECTION 14 - FURTHER ASSURANCES
At any time and from time to time after the Closing, each Party
shall, at his own cost and expense, execute, deliver and acknowledge such other
documents and take such further actions as may be reasonably requested by
another Party in order to fully consummate the transactions contemplated hereby.
SECTION 15 - AMENDMENTS
No addition to, and no cancellation, renewal, extension, modification
or amendment of, this Agreement shall be binding upon a Party unless such
addition, cancellation, renewal, extension, modification or amendment is set
forth in a written instrument which states that it adds to, cancels, renews,
extends, modifies or amends this Agreement and which is executed and delivered
on behalf of each Party.
<PAGE>
SECTION 16 - WAIVERS
No waiver of any provision of this Agreement shall be binding upon a
Party unless such waiver is expressly set forth in a written instrument which is
executed and delivered on behalf of such Party. Such waiver shall be effective
only to the extent specifically set forth in such written instrument. Neither
the exercise (from time to time and at any time) by a Party of, nor the delay or
failure (at any time or for any period of time) to exercise, any right, power or
remedy shall constitute a waiver of the right to exercise, or impair, limit or
restrict the exercise of, such right, power or remedy or any other right, power
or remedy at any time and from time to time thereafter. No waiver of any right,
power or remedy of a Party shall be deemed to be a waiver of any other right,
power or remedy of such Party or shall, except to the extent so waived, impair,
limit or restrict the exercise of such right, power or remedy.
SECTION 17 - HEADINGS; COUNTERPARTS
The headings set forth in this Agreement have been inserted for
convenience of reference only, shall not be considered a part of thisAgreement
and shall not limit, modify or affect in any way the meaning or interpretation
of this Agreement. This Agreement may be signed in any number of counterparts,
each of which (when executed and delivered) shall constitute an original
instrument, but all of which together shall constitute one and the same
instrument. This Agreement shall become effective and be deemed to have been
executed and delivered by all of the Parties at such time as counterparts shall
have been executed and delivered by each of the Parties, regardless of whether
each of the Parties has executed the same counterpart. It shall not be necessary
when making proof of this Agreement to account for any counterparts other than a
sufficient number of counterparts which, when taken together, contain signatures
of all of the Parties.
<PAGE>
SECTION 18 - SEVERABILITY
If any provision of this Agreement shall be held to be invalid,
unenforceable or illegal, in whole or in part, in any jurisdiction under any
circumstances for any reason, (i) such provision shall be reformed to the
minimum extent necessary to cause such provision to be valid, enforceable and
legal while preserving the intent of the Parties as expressed in, and the
benefits to the Parties provided by, this Agreement or (ii) if such provision
cannot be so reformed, such provision shall be severed from this Agreement and
an equitable adjustment shall be made to this Agreement (including, without
limitation, addition of necessary further provisions to this Agreement) so as to
give effect to the intent as so expressed and the benefits so provided. Such
holding shall not affect or impair the validity, enforceability or legality of
such provision in any other jurisdiction or under any other circumstances.
Neither such holding nor such reformation or severance shall affect or impair
the legality, validity or enforceability of any other provision of this
Agreement.
SECTION 19 - CONFIDENTIALITY
All data, reports, records and other information of any kind received
by a party (the "Receiving Party") or its affiliates, shareholders, partners,
directors, officers, employees, agents, representatives or consultants (the
"Delivering Party") under this Agreement shall be treated by the Receiving Party
as confidential (collectively, "Confidential Information"). The Receiving Party
shall not use Confidential Information for its own benefit and shall use all
reasonable efforts to maintain the confidentiality of Confidential Information
(including, without limitation, using all reasonable efforts to limit disclosure
of Confidential Information to its shareholders, prospective investors,
partners, directors, officers, affiliates, employees, agents, representatives
and consultants and use by them of Confidential Information for their own
<PAGE>
benefit). If the Receiving Party or, to the knowledge of the Receiving Party,
any of its shareholders, partners, directors, officers, affiliates, employees,
agents, representatives or consultants is required to disclose Confidential
Information to any governmental or quasi-governmental agency, authority or
instrumentality, the Receiving Party shall, prior to such disclosure,
immediately notify the Delivering Party of such requirement and all particulars
related to such requirement. The Delivering Party shall have the right, at its
expense, to object to such disclosure and to seek confidential treatment of any
Confidential Information to be so disclosed on such terms as it shall determine.
Following the Closing, the provisions of this Section 19 shall no longer apply
to Confidential Information regarding the Company acquired by the Buyer.
The restrictions set forth herein shall not apply to the use or
disclosure of Confidential Information (i) pursuant to any other written
agreement between the Parties, (ii) by a Party in connection with exercising its
rights or performing its duties or obligations under this Agreement or the
agreements, instruments and other documents contemplated hereby, (iii) with
respect to Confidential Information which (A) is or becomes generally available
to the public through no fault or neglect of the Receiving Party or any of its
shareholders, partners, directors, officers, affiliates, employees, agents,
representatives or consultants or, (B) is received in good faith on a
non-confidential basis from a third party who discloses such Confidential
Information to the Receiving Party without violating any obligations of secrecy
or confidentiality.
<PAGE>
IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement as of the date first above written.
SELLERS
------------------------------------
James L. Paterek
------------------------------------
Christopher P. Franco
------------------------------------
Michael Ferrentino
------------------------------------
Kevin Kiernan
BUYER
------------------------------------
John C. Fanning
COMFORCE CORPORATION
By----------------------------------
Name:
Title:
<PAGE>
Schedule 1.3
ALLOCATION OF PURCHASE PRICE
James L. Paterek $11,026,219.00
Christopher P. Franco $5,887,955.80
Michael Ferrentino $6,615,736.80
Kevin Kiernan $1,470,147.50
<PAGE>
Schedule 2.1
TITLE TO THE STOCK
James L. Paterek 1,666,322
Christopher P. Franco 889,794*
Michael Ferrentino 999,794
Kevin Kiernan 222,174
* 1. 12,500 shares are held by the Christopher P. Franco Charitable Foundation.
* 2. Paine Webber Margin Account to be reconciled at Closing.
