AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
Exhibit 2.1
AMENDMENT NO. 1 TO
THIS AMENDMENT NO. 1, dated as of April 22, 2008 (this “Amendment”), to the STOCK
PURCHASE AGREEMENT dated as of February 6, 2008 (the “Purchase Agreement”) by and among MBF
Healthcare Acquisition Corp., a Delaware corporation (the “Buyer”), Critical Homecare
Solutions Holdings, Inc., a Delaware corporation (the “Company”), Kohlberg Investors V,
L.P., (the “Sellers’ Representative”) and the other stockholders of the Company set forth
on the signature pages thereto (each, together with the Sellers’ Representative, a “Seller”
and collectively, the “Sellers”) is entered into by and among the Buyer, the Company and
the Sellers’ Representative (on behalf of all Sellers in such capacity). Capitalized terms used
herein and not otherwise defined shall have their respective meanings set forth in the Purchase
Agreement.
Section 2.6 of the Purchase Agreement provides the Sellers’ Representative with the authority
to take any and all actions that may be necessary or desirable, as determined by the Sellers’
Representative, in its sole discretion, in connection with the amendment of the Purchase Agreement
in accordance with Section 13.2 of the Purchase Agreement.
Pursuant to Section 13.2 of the Purchase Agreement, the Sellers’ Representative (on behalf of
all Sellers in such capacity) and the Buyer wish to amend certain provisions of the Purchase
Agreement as provided herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and in
the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Amendment to Recitals. The first recital of the Purchase Agreement is hereby
amended and restated in its entirety as follows:
“WHEREAS, the Sellers own all of the issued and outstanding shares of
Common Stock, $0.001 par value (the “Common Shares”) and shares of
Series A Convertible Preferred Stock, $0.001 par value, of the Company (the
“Preferred Shares” and together with the Common Shares, the
“Shares”).
2. Amendment to Article I of the Purchase Agreement. New definitions are hereby
inserted alphabetically in Section 1.1 of the Purchase Agreement as follows:
“Certificate of Designation” means the Certificate of the Powers, Designations,
Preferences and Rights of the Series A Convertible Preferred Stock, $0.001 par value.
“Common Stock Consideration” means an amount equal to the excess of (i) the Estimated
Purchase Price over (ii) the Preferred Stock Consideration, if any.
“Preferred Stock Consideration” means the product of (x) the number of shares of
Preferred Stock issued and outstanding on the Closing Date and (y) the sum of the Series A
Liquidation Preference (as defined in the Certificate Designation) plus all accrued and unpaid
dividends per share on the Series A Preferred Stock as of such date (the “Series A Liquidation
Preference”).
3. Amendment to Section 2.1(b) of the Purchase Agreement. The last sentence of
Section 2.1(b) of the Purchase Agreement is hereby amended and restated in its entirety as follows:
“The “Per Share Price” shall be an amount equal to the quotient obtained by dividing
(a) the excess of (i) the Common Stock Consideration over (ii) the Aggregate Option Consideration
by (b) the number of Common Shares outstanding as of the Closing Date (after giving effect to the
Option Cancellation), including any Common Shares issued in connection with the conversion of the
Preferred Stock in accordance with the Certificate of Designation.”
4. Amendment to Section 2.2(b) of the Purchase Agreement. The last sentence of
Section 2.2(b) of the Purchase Agreement is hereby amended and restated in its entirety as follows:
“(b) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a
bank account designated in writing by each such Seller (such designation to be made at least two
(2) Business Days prior to the Closing Date), (x) with respect to the shares of Common Stock held
by such Seller, the sum of the product of (i) the Per Share Price multiplied by (ii) the
number of shares of Common Stock outstanding on the Closing Date owned by such Seller as listed on
Annex A attached hereto and any Common Shares issued to such Seller in connection with the
conversion of the Preferred Stock in accordance with the Certificate of Designation) and (y) with
respect to the shares of Preferred Stock held by such Seller, the Series A Liquidation Preference
multiplied by (B) the number of shares of Preferred Stock outstanding on the Closing Date
owned by such Seller as listed on Annex A attached hereto; provided, further that,
notwithstanding anything to the contrary contained herein, any portion of the Estimated Purchase
Price attributable to a Special Adjustment shall be payable in either cash or Buyer’s Stock (which
shall be valued at the Closing Date Value), in the Buyer’s sole and absolute discretion;”
5. Amendment to Section 2.4 of the Purchase Agreement. Section 2.4 of the Purchase
Agreement is amended by replacing the term “Estimated Purchase Price” in the third sentence thereof
with the term “Common Stock Consideration and the term “Shares” in Clause (B) thereof shall be
replaced with the phrase “Common Shares”.
6. Amendment to Annexes to the Purchase Agreement.
(a) Annex A to the Purchase Agreement is hereby replaced in its entirety with Annex A
hereto as follows:
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Annex A
Sellers, Shares and Preferred Stock
| Seller | Common Stock | Preferred Stock | ||||||
Kohlberg Investors V, L.P. |
46,281,808 | 2,111 | ||||||
Xxxxxxxx XX Investors V, L.P. |
33,660,144 | 1,535 | ||||||
Kohlberg Offshore Investors V, L.P. |
3,100,197 | 142 | ||||||
Kohlberg Partners V, L.P. |
2,606,117 | 212 | ||||||
KOCO Investors V, L.P. |
2,044,042 | — | ||||||
S.A.C. Domestic Investments, L.P. |
548,077 | — | ||||||
Blackstone Mezzanine Partners II L.P. |
2,104,673 | — | ||||||
Blackstone Mezzanine Holdings II L.P. |
87,635 | — | ||||||
Xxxxx Xxxxx |
50,000 | — | ||||||
Xxxxxx Xxxxxx |
238,462 | — | ||||||
Xxxx Xxxx Xxxxxx |
138,462 | — | ||||||
Xxxx Xxxx |
38,462 | — | ||||||
Total |
90,898,079 | 4,000 | ||||||
7. Amendment to Section 7.23 of the Purchase Agreement. Section 7.23 is hereby
amended and restated in its entirety as follows:
Section 7.23 Board Designation Rights. The Buyer will appoint and otherwise take all
action necessary to cause a designee of the Kohlberg Entities to be appointed to the Board of
Directors of the Buyer.
8. Amendment to Schedules to the Purchase Agreement. Schedule 4.5 is hereby amended
and restated in its entirety as set forth on Attachment A attached hereto. Schedule 5.2 is
hereby amended and restated in its entirety as set forth on Attachment B attached hereto.
9. Effect of Amendment. This Amendment shall become effective, and shall be deemed to
be effective as of the date hereof. Except as otherwise expressly modified herein, the Purchase
Agreement shall remain unchanged and is in full force and effect. All references in the Purchase
Agreement to “this Agreement,” “hereto,” “hereof,” “hereunder” or words of like import referring to
the Purchase Agreement shall mean the Purchase Agreement as amended by this Amendment.
Notwithstanding the foregoing, references to the date of the Purchase Agreement, as amended hereby,
shall in all instances remain as of February 6, 2008, and references to “the date hereof” and “the
date of the Agreement” shall continue to refer to February 6, 2008.
10. Counterparts; Execution. This Amendment may be signed in any number of
counterparts with the same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an original of this Amendment.
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This Amendment shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other party.
11. Headings. The headings contained in this Amendment are intended solely for
convenience and shall not affect the rights of the parties to this Amendment.
12. Governing Law. This Amendment and all claims relating to this Amendment shall be
governed by and construed in accordance with the Laws of the State of New York, without giving
effect to the principals of conflict of laws thereof.
13. Severability. If any term or other provision of this Amendment is invalid,
illegal or incapable of being enforced by any court of competent jurisdiction, all other conditions
and provisions of this Amendment shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated thereby is not affected in any manner
materially adverse to either party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto 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 to the end that the transactions contemplated hereby are fulfilled to the
fullest extent possible.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above
written.
| MBF HEALTHCARE ACQUISITION CORP. |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Senior V.P. of Operations | |||
| CRITICAL HOMECARE SOLUTIONS HOLDINGS, INC. |
||||
| By: | /s/ Xxxx Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxx Xxxxxx | |||
| Title: | ||||
| KOHLBERG INVESTORS V, L.P. |
||||
| By: | Kohlberg Management V, L.L.C., its general partner | |||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | ||||
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Attachment A
Schedule 4.5
Seller Ownership of Company
Seller’s record ownership as of the date of the Agreement:
| Number of Common | Number of Preferred | |||||||
| Name of Beneficial Owner | Shares | Shares | ||||||
Kohlberg Investors V, L.P. |
46,281,808 | 2,111 | ||||||
Xxxxxxxx XX Investors V, L.P. |
33,660,144 | 1,535 | ||||||
Kohlberg Offshore Investors V, L.P. |
3,100,197 | 142 | ||||||
Kohlberg Partners V, L.P. |
2,606,117 | 212 | ||||||
KOCO Investors V, L.P. |
2,044,042 | — | ||||||
S.A.C. Domestic Investments, L.P. |
548,077 | — | ||||||
Blackstone Mezzanine Partners II L.P. |
2,104,673 | — | ||||||
Blackstone Mezzanine Holdings II L.P. |
87,635 | — | ||||||
Xxxxxx Xxxxxx |
238,462 | — | ||||||
Xxxx Xxxx Xxxxxx |
138,462 | — | ||||||
Xxxxx Xxxxx |
50,000 | — | ||||||
Xxxx Xxxx |
38,462 | — | ||||||
TOTAL: |
90,898,079 | 4,000 | ||||||
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Attachment B
Schedule 5.2
Company Capitalization
There are 105,000,000 authorized shares of capital stock, consisting of 100,000,000 shares of
Common Stock, par value $ 0.001 per share (the “Common Stock”), and 5,000,000 shares of
Preferred Stock, par value $0.001 per share (the “Preferred Stock”).
There are 4,000 shares of Series A Convertible Preferred Stock outstanding, which shares were
issued to the Sellers as provided on Annex A.
There are 90,898,079 shares of Common Stock outstanding.
| List of Optionholders, Number of Options and Exercise Price | ||||||||||||
| Optionholder | Number of Options | Grant Date | Exercise Price | |||||||||
Xxxxxx Xxxxxx |
1,800,000 | 12/06/06 | $ | 1.00 | ||||||||
| 2,305,000 | 01/09/07 | $ | 1.00 | |||||||||
| 375,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxx Xxxx Xxxxxx |
577,500 | 12/06/06 | $ | 1.00 | ||||||||
| 600,000 | 01/09/07 | $ | 1.00 | |||||||||
| 500,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxxx Xxxxx |
290,000 | 12/06/06 | $ | 1.00 | ||||||||
| 210,000 | 01/09/07 | $ | 1.00 | |||||||||
| 125,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxx Xxxx |
290,000 | 05/21/07 | $ | 1.00 | ||||||||
| 180,000 | 05/21/07 | $ | 1.00 | |||||||||
| 125,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxxxxx Xxxxxxx |
290,000 | 02/01/07 | $ | 1.00 | ||||||||
| 125,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxxxxxx Xxxxx |
75,000 | 12/06/06 | $ | 1.00 | ||||||||
| 75,000 | 01/09/07 | $ | 1.00 | |||||||||
| 100,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxxx Xxxxxxx |
50,000 | 04/01/07 | $ | 1.00 | ||||||||
| 10,000 | 06/30/07 | $ | 1.30 | |||||||||
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| List of Optionholders, Number of Options and Exercise Price | ||||||||||||
| Optionholder | Number of Options | Grant Date | Exercise Price | |||||||||
Xxx Xxxxxxxx |
50,000 | 12/06/06 | $ | 1.00 | ||||||||
| 10,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxx Xxxxxxxxxx |
50,000 | 01/09/07 | $ | 1.00 | ||||||||
| 10,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxxx Xxxxx |
150,000 | 04/01/07 | $ | 1.00 | ||||||||
| 30,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxx Xxxxxxxxx |
50,000 | 01/09/07 | $ | 1.00 | ||||||||
Xxxxxx XxXxxxxxx |
10,000 | 01/09/07 | $ | 1.00 | ||||||||
| 5,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxxxx Xxxxxxxx |
10,000 | 01/09/07 | $ | 1.00 | ||||||||
| 5,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxxx Xxxxxxx |
15,000 | 01/09/07 | $ | 1.00 | ||||||||
| 10,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxxx Xxxxxxx |
75,000 | 01/09/07 | $ | 1.00 | ||||||||
| 10,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxx Xxxxxxxx |
75,000 | 01/09/07 | $ | 1.00 | ||||||||
| 10,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxxx Banner |
25,000 | 03/30/07 | $ | 1.00 | ||||||||
| 10,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxx Xxxxxxx |
25,000 | 04/10/07 | $ | 1.00 | ||||||||
| 10,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxxx Xxxxxxx |
25,000 | 03/13/07 | $ | 1.00 | ||||||||
| 10,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxx Xxxxxxxx |
40,000 | 03/19/07 | $ | 1.00 | ||||||||
| 15,000 | 06/30/07 | $ | 1.30 | |||||||||
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| List of Optionholders, Number of Options and Exercise Price | ||||||||||||
| Optionholder | Number of Options | Grant Date | Exercise Price | |||||||||
Xxxxx Xxxxxx |
25,000 | 03/22/07 | $ | 1.00 | ||||||||
| 20,000 | 06/30/07 | $ | 1.30 | |||||||||
Xxxxx Xxxx |
25,000 | 06/30/07 | $ | 1.30 | ||||||||
Xxxxxxxx Xxxxxxx |
5,000 | 06/30/07 | $ | 1.30 | ||||||||
Xxxx Xxxxxx |
6,000 | 06/30/07 | $ | 1.30 | ||||||||
Xxxxxxxx Xxxxx |
12,500 | 06/30/07 | $ | 1.30 | ||||||||
Total |
8,931,000 | |||||||||||
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