Westaff, Inc.

0000950144-07-003001.txt : 20070402 0000950144-07-003001.hdr.sgml : 20070402 20070402171209 ACCESSION NUMBER: 0000950144-07-003001 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20070402 DATE AS OF CHANGE: 20070402 GROUP MEMBERS: ANTHONY A. TAMER GROUP MEMBERS: H.I.G. ADVISORS III, L.L.C. GROUP MEMBERS: H.I.G. CAPITAL PARTNERS III, L.P. GROUP MEMBERS: H.I.G. STAFFING 2007, LTD. GROUP MEMBERS: H.I.G.-GP II, INC. GROUP MEMBERS: SAMI W. MNAYMNEH SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WESTAFF INC CENTRAL INDEX KEY: 0000931911 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HELP SUPPLY SERVICES [7363] IRS NUMBER: 941266151 STATE OF INCORPORATION: DE FISCAL YEAR END: 1102 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-50455 FILM NUMBER: 07740335 BUSINESS ADDRESS: STREET 1: 298 NORTH WIGET LANE CITY: WALNUT CREEK STATE: CA ZIP: 94598-2453 BUSINESS PHONE: 9259305300 MAIL ADDRESS: STREET 1: P O BOX 9280 STREET 2: 298 NORTH WIGET LANE CITY: WALNUT CREEK STATE: CA ZIP: 94598-2453 FORMER COMPANY: FORMER CONFORMED NAME: WESTERN STAFF SERVICES INC DATE OF NAME CHANGE: 19941024 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DelStaff, LLC CENTRAL INDEX KEY: 0001392321 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1001 BRICKELL BAY DRIVE STREET 2: 27TH FLOOR CITY: MIAMI STATE: FL ZIP: 33131 BUSINESS PHONE: (305) 379-2322 MAIL ADDRESS: STREET 1: 1001 BRICKELL BAY DRIVE STREET 2: 27TH FLOOR CITY: MIAMI STATE: FL ZIP: 33131 SC 13D/A 1 g06453sc13dza.htm WESTAFF, INC. Westaff, Inc.

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

SCHEDULE 13D

(Rule 13d-102)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)

(Amendment No. 2)*

WESTAFF, INC.

(Name of Issuer)

COMMON STOCK, $0.01 PAR VALUE

(Title of Class of Securities)

957070 10 5

(CUSIP Number)

DelStaff, LLC
c/o H.I.G. Capital, L.L.C.
1001 Brickell Bay Drive, 27th Floor
Miami, Florida 33131
Attention: John Black
Telephone: (305) 379-2322

with copies to:


H.I.G. Capital, L.L.C.		Greenberg Traurig, LLP
1001 Brickell Bay Drive, 27th Floor		77 West Wacker Drive
Miami, Florida 33131		Chicago, Illinois 60601
Attention: Richard H. Siegel, Esq.		Attention: Paul Quinn, Esq.
Telephone: (305) 379-2322		Telephone: (312) 456-8400

(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)

March 30, 2007

(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 that is the subject of this Schedule 13D and is filing this Schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7(b) for other parties to whom copies are to be sent.

*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 (“Act”) 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).

(Continued on following pages)

SCHEDULE 13D/A

This Amendment No. 2 relates to the Statement of Beneficial Ownership on Schedule 13D filed jointly by (i) DelStaff, LLC, a Delaware limited liability company, (ii) H.I.G. Staffing 2007, Ltd., a Cayman Islands exempted company, (iii) H.I.G. Capital Partners III, L.P., a Delaware limited partnership, (iv) H.I.G. Advisors III, L.L.C., a Delaware limited liability company, (v) H.I.G.-GPII, Inc., a Delaware corporation, (vi) Sami W. Mnaymneh, an individual and (vii) Anthony A. Tamer, an individual, with the Securities and Exchange Commission on March 13, 2007, as amended by Amendment No. 1 thereto, filed with the SEC on March 14, 2007 (the ‘‘Schedule 13D’’). Item 4 of the Schedule 13D is amended as set forth below, and all other Items of the Schedule 13D remain unchanged. All capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in the Schedule 13D.

Item 4. Purpose of Transaction

Item 4 is hereby amended to add the following supplemental information:

“On March 30, 2007, Mr. Stover took action under the relevant provisions of the certificate of incorporation and bylaws of the Issuer to (i) postpone the originally scheduled Stockholders Meeting to, and to call in writing a special meeting of stockholders of the Issuer to be held on, Friday, June 29, 2007 at 10:00 a.m. local time at the Issuer’s administrative offices located at 298 N. Wiget Lane, Walnut Creek, California (the “June Stockholders Meeting”), (ii) postpone the originally scheduled Board Meeting to, and to call in writing a special meeting of the Board to be held on Friday, May 4, 2007 at 10:00 a.m. local time at the Issuer’s administrative offices located at 298 N. Wiget Lane, Walnut Creek, California (the “May Board Meeting”), and (iii) cancel and rescind the written notice of the originally scheduled Board Meeting, and to deliver written notice of the May Board Meeting to the members of the Board. The written postponement of the Stockholders Meeting and call of the June Stockholders Meeting made by Mr. Stover provides that the current purposes of the June Stockholders Meeting are to (i) amend the bylaws of the Issuer to increase the number of directors from five to nine (or such larger number as may be necessary to permit the persons nominated by DelStaff, to constitute a majority of the members of the Board), (ii) elect DelStaff’s nominees to fill such newly created directorships, (iii) amend the certificate of incorporation of the Issuer to permit a stockholder that beneficially owns twenty percent (20%) or more of the outstanding shares of the Issuer’s common stock to call a special meeting of the stockholders of the Issuer and (iv) to transact such other business as may properly come before the June Stockholders Meeting or any adjournment or adjournments thereof. The written postponement of the Board Meeting and call of the May Board Meeting made by Mr. Stover provides that the current purposes of the May Board Meeting are to (i) set the record date for the June Stockholders Meeting, (ii) approve the Issuer’s notice of the June Stockholders Meeting, (iii) determine the size of each of the three classes of directors of the Board to account for the newly created directorships proposed to be created at the June Stockholders Meeting, and (iv) take other actions as may be necessary or desirable in furtherance of the foregoing purposes.

The Board and DelStaff are currently engaged in preliminary discussions regarding the execution of a “corporate governance” agreement between the Issuer and DelStaff.

The postponement and rescheduling of the Special Meeting and the Board Meeting taken in the foregoing paragraph were effected to permit the Board and DelStaff additional time to negotiate mutually satisfactory terms and conditions of such an agreement. Although DelStaff is optimistic that a mutually satisfactory corporate governance agreement can be negotiated and entered into in the near future, there can be no assurance that a definitive agreement will be entered into in the near future or at all.

In addition, in connection with the foregoing, on March 30, 2007, DelStaff and the Issuer entered into a letter agreement pursuant to which the Issuer confirmed receipt of the notices effecting the foregoing postponements. In addition, the Issuer agreed that DelStaff is not submitting, on or before Friday, March 30, 2007 (the “Advance Notice Deadline”), formal notice to the Issuer of the persons nominated by DelStaff to serve on the Board (the “Nominees”), solely in reliance upon the Issuer’s expressed willingness to negotiate in good faith the terms and conditions of a mutually acceptable governance agreement, and the Issuer agreed not to assert, and waives all rights it may have arising out of or related to, DelStaff’s decision not to submit a formal notice of the Nominees on or before the Advance Notice Deadline.

Also on March 30, 2007, the parties to the Purchase Agreement amended the Purchase Agreement (“Amendment No. 1”) to extend the Outside Date from September 30, 2007 to October 30, 2007.

The foregoing summaries of the letter agreement and Amendment No. 1 are qualified in their entirety by the full text of the letter agreement and Amendment No. 1, respectively, complete and accurate copies of which are attached hereto as Exhibit 99.5 and Exhibit 99.6, respectively, and incorporated in their entirety in this Item 4 by reference.

Item 7. Material to be Filed as Exhibits

The disclosure in Item 7 of the Schedule 13D is hereby supplemented by adding the following Exhibits:


Exhibit 99.5		Letter agreement, dated March 30, 2007, between DelStaff and the Issuer


Exhibit 99.6		Amendment No. 1 to the Purchase Agreement, dated as of March 30, 2007, by and among DelStaff, Mr. Stover and the other signatories thereto

SIGNATURE

After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this amendment is true, complete and correct.

Dated: April 2, 2007


DELSTAFF, LLC
By:	/s/ John Black
	Name:	John Black
	Title:	Manager

H.I.G. STAFFING 2007, LTD.
By:	/s/ Anthony A. Tamer
	Name:	Anthony A. Tamer
	Title:	Director

H.I.G- GPII, INC.
By:	/s/ Anthony A. Tamer
	Name:	Anthony A. Tamer
	Title:	President

H.I.G. ADVISORS III, L.L.C.
By: H.I.G.-GPII, Inc.
Its: Manager



By:	/s/ Anthony A. Tamer
	Name:	Anthony A. Tamer
	Title:	President


H.I.G. CAPITAL PARTNERS III, L.P.
By: H.I.G. Advisors III, L.L.C.
Its: General Partner



By:	H.I.G.-GPII, Inc.
	Its: Manager



By:	/s/ Anthony A. Tamer
	Name:	Anthony A. Tamer
	Title:	President


/s/ Sami W. Mnaymneh
Sami W. Mnaymneh



/s/ Anthony A. Tamer
Anthony A. Tamer

EX-99.5 2 g06453exv99w5.htm EX-99.5 LETTER AGREEMENT EX-99.5 Letter Agreement

EXHIBIT 99.5

DelStaff, LLC
c/o H.I.G. Capital, LLC
855 Boylston Street — 11^th Floor
Boston, Massachusetts 02116

Westaff, Inc.
298 North Wiget Lance
Walnut Creek, California 94598-2453
Attention: Independent Members of the Board of Directors

March 30, 2007

Dear Independent Members of the Board of Directors:

On February 28, 2007, the Chairman of the Board of Directors (the “Board”) of Westaff, Inc., a Delaware corporation (the “Company”), executed a document (the “February Notices”) calling (i) a special meeting of the stockholders of the Company to be held on Wednesday, May 30, 2007 (the “Special Meeting of Stockholders”) and (ii) a special meeting of the Board to be held on Wednesday, April 4, 2007 (the “Special Meeting of the Board”), and gave proper notice of such Board meeting. On the date hereof, the Chairman of the Board executed a document calling for the (i) postponement of the Special Meeting of Stockholders to, and calling a special meeting of stockholders to be held on, Friday, June 29, 2007, at 10:00 a.m. local time at the Company’s administrative offices located at 298 N. Wiget Lane, Walnut Creek, California and (ii) postponement of the Special Meeting of the Board to, and called a special meeting of the Board to be held on, Friday, May 4, 2007, at 10:00 a.m. local time at the Company’s administrative offices located at 298 N. Wiget Lane, Walnut Creek, California, and gave proper notice of such Board meeting.

The Company hereby confirms receipt of the notices effecting the foregoing, acknowledges and agrees that the call of the Special Meeting of Stockholders and Special Meeting of the Board referred to in the February Notices has been revoked and that new dates have been proposed for the Special Meeting of the Stockholders and established for the Special Meeting of the Board in order to permit the Board and DelStaff, LLC (“DelStaff”) additional time to negotiate mutually satisfactory terms and conditions of a corporate governance agreement. In addition, the Company acknowledges and agrees that DelStaff is not submitting, on or before Friday, March 30, 2007 (the “Advance Notice Deadline”), formal notice to the Company of the persons nominated by DelStaff to serve on the Board (the “Nominees”), as would have been required pursuant to the February Notices, solely in reliance upon the Company’s expressed willingness to negotiate in good faith the terms and conditions of a mutually acceptable governance agreement, and the Company agrees not to assert, and waives all rights it may have arising out of or related to, DelStaff’s decision not to submit a formal notice of the Nominees on or before the Advance Notice Deadline.

This letter agreement shall be governed by and construed in accordance with the internal laws (and not the law of conflicts) of the State of Delaware. Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this letter agreement and any related agreement or the transactions contemplated hereby or thereby shall be brought exclusively in any federal or state court located in the State of Delaware, and each of the parties hereto hereby consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient form. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.

This letter agreement may be signed in counterparts and delivered by facsimile or portable document format (pdf).


Very truly yours, DELSTAFF, LLC
By:	/s/ John Black
	Name:	John Black
	Title:	Manager

Agreed and accepted on March 30, 2007 WESTAFF, INC.
By:	/s/ Patricia M. Newman
	Name:	Patricia M. Newman
	Title:	President and Chief Executive Officer

EX-99.6 3 g06453exv99w6.htm EX-99.6 AMENDMENT NO. 1 TO PURCHASE AGREEMENT EX-99.6 Amendment No. 1 to Purchase Agreement

EXHIBIT 99.6

AMENDMENT AGREEMENT

This AMENDMENT No. 1 (this “Amendment”), dated as of March 30, 2007, to the Stock Purchase Agreement (the “Agreement”), dated as of February 28, 2007, by and among DelStaff, LLC, a Delaware limited liability company (“Buyer”), W. Robert Stover (“WRS”) and each of the stockholders of Westaff, Inc., a Delaware corporation (the “Company”), listed on Exhibit A attached to the Agreement (collectively, the “Stockholders”), is entered into by and among Buyer, WRS and each of the Stockholders. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement.

WITNESSETH:

WHEREAS, the parties have entered into the Agreement, pursuant to which on February 28, 2007 Buyer purchased the Share Interests from each of the Stockholders, and each Stockholder sold his, her or its Share Interest to Buyer; and

WHEREAS, the parties wish to amend the Agreement as set forth in this Amendment.

NOW, THEREFORE, in consideration of the premises and in reliance on the representations, warranties, covenants and agreements contained in the Agreement and herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

Section 1. Amendment to Definition of Outside Date. The definition of Outside Date contained in Section 1.01(a) of the Agreement is hereby amended and restated in its entirety to read as follows:

““Outside Date” means October 30, 2007, (a) as it may be extended by Buyer in its sole discretion, by written notice to the Stockholders, for up to two (2) consecutive six-month periods, provided Buyer is in compliance in all material respects with the provisions of this Agreement (including Sections 6.01 and 6.04), and (b) as it may be further extended by written agreement of the parties hereto.”

Section 2. Successors and Assigns. The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Amendment without the consent of the other parties hereto; provided, however, that Buyer may, without the consent of any of the other parties hereto (a) (i) assign any or all of its rights and interests hereunder to one or more of its Affiliates and (ii) designate one or more of its Affiliates to perform its obligations hereunder, and (b) assign its rights and obligations pursuant to this Amendment, in whole or in part, in connection with any sale, transfer or other disposition of all or any portion of the Shares in any form of transaction or to its lenders providing financing for the purchase of the Shares. Notwithstanding the foregoing, in any and all of the cases described in clauses (a) and (b) of this Section 2, Buyer nonetheless shall remain responsible for the performance of all of its obligations hereunder.

Section 3. Counterparts; No Third Party Beneficiaries. This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Amendment and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or e-mail, shall be treated in all manner and respects as an original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine or e-mail to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or e-mail as a defense to the formation or enforceability of a contact and each such party forever waives any such defense. No provision of this Amendment is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns.

Section 4. Entire Agreement. This Amendment, the Agreement (and all exhibits and schedules thereto), the Pledge Agreement, the Custody Agreement, the Promissory Notes and the Guaranty constitute the entire agreement between the parties hereto with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof and thereof.

Section 5. Severability. If any term or provision of this Amendment is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms and provisions of this Amendment or any related agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Amendment so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

Section 6. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law rules of such state.

Section 7. Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Amendment and any related agreement or the transactions contemplated hereby or thereby shall be brought exclusively in any federal or state court located in the State of Delaware, and each of the parties hereby consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient form. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that

service of process on such party as provided in Section 9.01 of the Agreement shall be deemed effective service of process on such party.

Section 8. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AMENDMENT OR ANY RELATED AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, the parties hereto have duly executed, or caused to be duly executed by their respective authorized officers, this Amendment as of the day and year first above written.


DELSTAFF, LLC
By:	/s/ John Black
	Name:	John Black
	Title:	Manager

STOVER REVOCABLE TRUST DATED NOVEMBER 16, 1988, AS AMENDED
By:	/s/ W. Robert Stover
	Name:	W. Robert Stover
	Title:	Co-Trustee

W. ROBERT STOVER
/s/ W. Robert Stover



THE STOVER FOUNDATION
By:	/s/ W. Robert Stover
	Name:	W. Robert Stover
	Title:	Vice President, Treasurer and Director

STOVER 1999 CHARITABLE REMAINDER UNITRUST DATED 4/21/99
By:	/s/ W. Robert Stover
	Name:	W. Robert Stover
	Title:	Co-Trustee


AMY STOVER-NEWTON
/s/ Amy Stover-Newton



STEPHEN STOVER
/s/ Stephen Stover



SUSAN STOVER
/s/ Susan Stover




/s/ Susan J. Stover
SUSAN J. STOVER, AS CO-TRUSTEE OF THE SUSAN J. STOVER GST IRREVOCABLE TRUST


U.S. BANK, AS CO-TRUSTEE OF THE SUSAN J. STOVER GST IRREVOCABLE TRUST
By:	/s/ Joyce M. Cutler
	Name:	Joyce M. Cutler
	Title:	VP and Trust Relationship Manager


/s/ Stephen R. Stover
STEPHEN R. STOVER, AS CO-TRUSTEE OF THE STEPHEN R. STOVER IRREVOCABLE TRUST AS AMENDED 3/28/96


WAYNESBURG COLLEGE
By:	/s/ Roy R. Barnhart
	Name:	Roy R. Barnhart
	Title:	Vice President for Business and Finance

PRESBYTERIAN LAY COMMITTEE, INC.
By:	/s/ Stephen G. Brown
	Name:	Stephen G. Brown
	Title:	Chairman of Board