SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
Exhibit 2.1
EXECUTION COPY
SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
This Amendment (this “Amendment”) is made and entered into as of February 27, 2006, by
and among OPEN SOLUTIONS INC., a Delaware corporation (the “Purchaser Parent"), HUSKY ACQUISITION
CORPORATION, a Delaware corporation and a wholly-owned subsidiary of the Purchaser Parent (the
“Purchaser"), THE BISYS GROUP, INC., a Delaware corporation (the “Seller Parent"), and BISYS INC.,
a Delaware corporation and a wholly-owned subsidiary of the Seller Parent (the “Seller").
RECITALS
WHEREAS, the Purchaser Parent, the Purchaser, the Seller Parent and the Seller entered into
that certain Stock Purchase Agreement, made and entered as of September 15, 2005, as amended on
December 15, 2005 (the “Purchase Agreement"); and
WHEREAS, the parties desire to amend, among other things, the definition of “Drop Dead Date”
in Section 1.01 of the Purchase Agreement as set forth below.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions
All capitalized terms used but not elsewhere defined herein shall have the meanings ascribed
to such terms in the Purchase Agreement.
2. Amendment to Section 1.01 of the Purchase Agreement
The definition of Drop Dead Date in Section 1.01 of the Purchase Agreement is amended
and replaced in its entirety by the following:
“Drop Dead Date” means March 8, 2006.”
3. Amendment to Section 6 of the First Amendment
Section 6 of the Amendment, made and entered as of December 15, 2005, by and among the
Purchaser Parent, the Purchaser, the Seller Parent and the Seller (the “First Amendment”)
is amended and replaced in its entirety by the following:
“Each of the parties hereto acknowledges and agrees that (a) the Amended and Restated
Commitment Letter (the “Amended and Restated Commitment Letter"), dated as of December 14, 2005,
from Wachovia Bank, National Association and Wachovia Capital Markets, LLC (collectively, the
“Wachovia Parties") to the Purchaser Parent expires on February 28, 2006, (b) as a result of
amending the Drop Dead Date pursuant to Section 2 above, the Purchaser Parent shall use
reasonable commercial efforts to obtain a second amended and restated
Commitment Letter (the “Second Amended and Restated Commitment Letter") from the Wachovia
Parties, (c) the representations and warranties made by the Purchaser Parent and the Purchaser in
Section 4.05 of the Purchase Agreement shall be true and correct in all material respects
on and as of the Closing Date with respect to such Second Amended and Restated Commitment Letter,
(d) the obligation of the Purchaser Parent and the Purchaser to consummate the Closing shall be
subject to the fulfillment on or before the Closing Date of the condition that the Purchaser Parent
and the Purchaser shall have received all of the proceeds of the financings described in the Second
Amended and Restated Commitment Letter and (e) for all purposes of the Purchase Agreement, the term
“Wachovia Commitment” shall mean the commitment of the Wachovia Parties to provide, subject to
certain conditions set forth in the Second Amended and Restated Commitment Letter, all funds
necessary, together with other funds available to the Purchaser, to pay the Estimated Purchase
Price at Closing.”
4. Amendment to Section 7 of the First Amendment
Section 7 of the First Amendment is amended and replaced in its entirety by the
following:
“Notwithstanding any provision of Section 10.01 of the Purchase Agreement to the
contrary, and in addition to the payment of any other amounts required under Section 10.01
of the Purchase Agreement (without duplication of items reimbursed hereunder), if the Closing
occurs or if the Agreement is terminated prior to Closing pursuant to Section 9.01 (other
than pursuant to Section 9.01(b)), the Seller Parent shall be obligated to promptly
reimburse the Purchaser Parent in full (by wire transfer of immediately available funds to an
account designated by the Purchaser Parent) for the following:
(a) the amount of the supplemental upfront fee (i.e., “ticking fee”) and other
commitment-related fees payable by the Purchaser Parent to Wachovia Bank (as such term is
defined in the Second Amended and Restated Commitment Letter) for its own account and the
ratable account of the Senior Lenders (as such term is defined in the Second Amended and
Restated Commitment Letter) in connection with the Senior Credit Facilities (as such term is
defined in the Second Amended and Restated Commitment Letter) that is in excess of $133,440;
(b) the amount of the supplemental upfront fee (i.e., “ticking fee”) and
commitment-related fees payable by the Purchaser Parent to Wachovia Bank for its own account
and the ratable account of the Second Lien Lenders (as such term is defined in the Second
Amended and Restated Commitment Letter) in connection with the Second Lien Facility (as such
term is defined in the Second Amended and Restated Commitment Letter) that is in excess of
$25,020;
(c) the reasonable out-of-pocket fees and expenses incurred by or on behalf of the
Purchaser Parent or any of its Affiliates that would not have been incurred had the
condition to Closing under Section 7.03(i) of the Purchase Agreement been satisfied
and the Closing had occurred on or prior to December 31, 2005, including, but not limited
to, the fees and expenses of counsel and accountants, in connection with the negotiation and
preparation of this Amendment and the Second Amended and Restated Commitment
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Letter, which fees and expenses shall be documented consistent with the past practice
of Purchaser Parent (Purchaser Parent currently estimates that such fees and expenses will
not exceed $300,000 in the aggregate and agrees that, upon becoming aware that such fees and
expenses will exceed such estimate, it will so notify Seller Parent and advise Seller Parent
of the factors giving rise to such increased cost); and
(d) if the Closing occurs, an amount equal to (A) the product of (x) $350,000
multiplied by (y) each five (5) basis point increment by which the interest rate at the
Closing with respect to the Senior Credit Facilities is in excess of LIBOR plus 250 basis
points, plus (B) the product of (x) $100,000 multiplied by (y) each five (5) basis point
increment by which the interest rate at the Closing with respect to the Second Lien Facility
is in excess of LIBOR plus 650 basis points.”
5. References
Each reference in the Purchase Agreement to “this Agreement”, “hereof”, “herein”, and
“herewith” and words of similar import shall, unless otherwise stated, be construed to refer to the
Purchase Agreement as a whole (including all Schedules thereto) as amended by this Amendment.
6. Section Headings and Captions
The Section headings and the captions of the Articles in this Amendment are solely for
convenient reference and shall not be deemed to affect the meaning or interpretation of this
Agreement.
7. Counterparts; 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 such signatures were upon the same instrument. A facsimile or
photocopied signature (which may be delivered by facsimile) shall be deemed to be the functional
equivalent of an original for all purposes. This Amendment shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted assigns. No
provision of this Amendment is intended to confer and shall not confer upon any Person other than
the parties hereto and their respective successors and permitted assigns any rights or remedies.
8. Applicable Law
This Amendment shall be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made to be performed therein.
9. Severability
If this Amendment, or any of its provisions, or the performance of any provision, is found to
be illegal or unenforceable, the parties shall be excused from the performance of such portions of
this Amendment as shall be found to be illegal or unenforceable without affecting the validity of
the remaining provisions of this Amendment; provided, however, that the remaining
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provisions of this Amendment shall in their totality constitute a commercially reasonable
agreement.
10. No Further Effect
Except as explicitly amended or otherwise modified by this Amendment, the Purchase Agreement
shall remain in full force and effect in accordance with its terms.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have duly executed and delivered this Amendment as of the day
and year first above written.
| OPEN SOLUTIONS INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | CFO | |||
| HUSKY ACQUISITION CORPORATION |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Treasurer | |||
| THE BISYS GROUP, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | EVP + CFO | |||
| BISYS INC. |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | EVP + CFO | |||
