FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
Exhibit 10.3
THIS FIRST AMENDMENT (this “Amendment”) to that certain Asset Purchase Agreement,
dated as of October 1, 2009 (the “Agreement”), by and among (i) American Processing
Company, LLC, a Michigan limited liability company (d/b/a NDeX) (the “Buyer”), (ii) The
Xxxxx Company, a Delaware corporation (f/k/a Xxxxx Media Company) (“DMC” and, together with
the Buyer, the “Buying Parties” and each a “Buying Party”), (iii) Xxxxx X.
Xxxxxxxxxx, P.A., a Florida professional association d/b/a “Xxxxxxxxxx Law” (“Xxxxxxxxxx
Florida”), (iv) The Xxxxxxxxxx Firm, P.C., a Georgia professional corporation (“Xxxxxxxxxx
Georgia”), (v) Xxxxxxxxxx Title, Inc., a Florida corporation (“Xxxxxxxxxx Title,” and
together with Xxxxxxxxxx Florida and Xxxxxxxxxx Georgia, the “Sellers” and each a
“Seller”), and (vi) Xxxxx X. Xxxxxxxxxx, an individual (“Xxxxxxxxxx,” and together
with the Sellers, the “Selling Parties” and each a “Selling Party”), is made and
entered into to be effective for all purposes as of July 12, 2010 among each of the Buying Parties
and each of the Selling Parties.
RECITAL
Each of the Buying Parties and the Selling Parties now desire to amend the Agreement as set
forth below;
In consideration of the mutual promises, covenants and agreements contained herein, the
sufficiency of which is hereby agreed to and acknowledged, the parties hereto agree to amend the
Agreement as follows:
AGREEMENTS
1. Amendments.
1.1 Section 8.6(b). The first sentence of Section 8.6(b) of the Agreement is hereby
deleted in its entirety and replaced with the following:
(b) Non-Compete. Each Non-Compete Party hereby agrees that for a period
commencing on the Closing Date and ending three (3) years from the Closing Date (the
“Restricted Period”), he, she or it will not, directly or indirectly, as agent, employee,
consultant, representative, manager, equityholder or in any other capacity, own (other than
through the passive ownership of less than one percent (1%) of the publicly traded shares of
any Person), operate, manage, control, engage in, invest in (other than through the passive
ownership of less than one percent (1%) of the publicly traded shares of any Person) or
participate in any manner in, act as a consultant or advisor to, render services for (alone
or in association with any Person), or otherwise assist any Person that engages in or owns,
invests in, operates, manages or controls any venture or enterprise that directly or
indirectly engages or proposes to engage in any business competitive in any material respect
with any portion of the Business anywhere in the States of Alabama, Arizona, California,
Florida, Georgia, Indiana, Michigan, Minnesota, Nevada and Texas (the “Territory”).
1.2 Section 8.9. Section 8.9 of the Agreement is hereby deleted in its entirety and
replaced with the following:
8.9 Covenant to Enter Into New Services Agreements. Upon the request of the
Buyer after the Closing Date, Xxxxxxxxxx covenants and agrees, on behalf of himself
individually, Xxxxxxxxxx Florida, Xxxxxxxxxx Georgia and any other law firm affiliated with
him, Xxxxxxxxxx Florida or Xxxxxxxxxx Georgia, respectively (any such law firm, together
with Xxxxxxxxxx Florida and Xxxxxxxxxx Georgia, each an “Xxxxxxxxxx Law Firm”), that, if
Xxxxxxxxxx or any Xxxxxxxxxx Law Firm opens an office or otherwise does business at any time
whether within or outside of the Territory, Xxxxxxxxxx and any such Xxxxxxxxxx Law Firm
shall promptly enter into a services agreement with the Buyer or one or more of its
Affiliates (such person, the “Default Specialist”) in substantially the form as the Florida
Services Agreement (any such new services agreement, a “New Services Agreement”), but solely
with respect to Xxxxxxxxxx’x and/or any such Xxxxxxxxxx Law Firm’s conduct of the Business.
The Buyer (on behalf of such Default Specialist), on the one hand, and Xxxxxxxxxx (on
behalf of any such Xxxxxxxxxx Law Firm), on the other hand, each acknowledge and agree that
the per file fee charged by the Default Specialist for each type of file referred by such
Xxxxxxxxxx Law Firm to the Default Specialist for processing shall be established at the
lower of (i) the per file fee that the Default Specialist charges other applicable competing
law firms for similar processing services for files in the applicable territory (the “New
Territory”) and (ii) one hundred and twenty percent (120%) of the Default Specialist’s
aggregate direct and indirect costs for providing such processing services;
provided, however, that if, at the time prior to any such New Services
Agreement being entered into between the Default Specialist and such Xxxxxxxxxx Law Firm,
the Default Specialist is not then currently providing processing services in the New
Territory, then only clause (ii) above shall be used for establishing the applicable file
fees in such New Services Agreement.
1.3 Section 8.11. The following is hereby added to the Agreement as Section 8.11:
8.11 Covenant to Refer Files. To the extent not otherwise subject to the
provisions of Section 8.10 hereof, Xxxxxxxxxx covenants and agrees, both on behalf
of himself individually, each of his affiliates and each Xxxxxxxxxx Law Firm, to promptly
refer to (i) the Buyer or its applicable Affiliate whether within or outside of the
Territory or (ii) upon the request of the Buyer, the relevant law firm affiliated with the
Buyer or its applicable Affiliate if within the Territory, all files (including, but not
limited to, those types of files described in Section 3.1(a) of the Florida Services
Agreement, in Section 3.1(a) of the Georgia Services Agreement or the applicable section of
any New Services Agreement) with respect to which Xxxxxxxxxx, any of his affiliates or any
Xxxxxxxxxx Law Firm (x) receive from any Person (including, but not limited to, any Agency,
any Investor or any Client (as each such term is defined in the Florida Services Agreement))
or (y) otherwise have the ability to influence or direct the referral of such files, in each
case for processing in conjunction with the residential (but not commercial) foreclosure,
residential eviction, residential bankruptcy and litigation (with respect to any of the
foregoing) law or trustee practices of Xxxxxxxxxx, any of Xxxxxxxxxx’x affiliates or any
Xxxxxxxxxx Law Firm (collectively, the “Practices”). In consideration for Xxxxxxxxxx’x
agreement, both on behalf of himself individually, each of his affiliates and each
Xxxxxxxxxx Law Firm, to comply with this Section 8.11, the Buyer, on behalf of
itself and its Affiliates, agrees to pay or cause to be paid to Xxxxxxxxxx, his applicable
affiliate or the applicable Xxxxxxxxxx Law Firm a referral fee for each file referred to the
Buyer or one or more of its Affiliates, which such referral fee shall be mutually agreed
upon in good faith between the Buyer, on behalf of itself and any applicable Affiliate, and
Xxxxxxxxxx, on behalf of himself, his affiliates and any applicable Xxxxxxxxxx Law Firm.
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1.4 Section 8.12. The following is hereby added to the Agreement as Section 8.12:
8.12 Covenant to Use DMC’s Posting and Publication Services. Xxxxxxxxxx
covenants and agrees, both on behalf of himself individually and each Xxxxxxxxxx Law Firm,
to
exclusively use DMC or one or more of DMC’s Affiliates for the publication or posting of all
foreclosure, public or other legal notices required or desired to be published or posted
(whether in a legal or other newspaper or on an Internet web site) in conjunction with the
Practices of Xxxxxxxxxx or any Xxxxxxxxxx Law Firm or on behalf of any client of Xxxxxxxxxx
or any Xxxxxxxxxx Law Firm whether within or outside of the Territory; provided,
however, that (i) notwithstanding the foregoing, Xxxxxxxxxx Georgia shall not be
required to comply with this Section 8.12 and (ii) neither Xxxxxxxxxx nor any
applicable Xxxxxxxxxx Law Firm shall be required to comply with this Section 8.12
for so long as none of DMC or any of its Affiliates offer posting or publication services
(collectively, the “Services”) for the relevant geographic area in which Xxxxxxxxxx or the
applicable Xxxxxxxxxx Law Firm requires the publication or posting of any foreclosure,
public or other legal notices in conjunction with the relevant Practice(s) of Xxxxxxxxxx or
the applicable Xxxxxxxxxx Law Firm in such relevant geographic area; provided,
further, however, that Xxxxxxxxxx, on behalf of himself individually and
each Xxxxxxxxxx Law Firm, covenants and agrees to (1) provide not less than ten (10) days
prior written notice to DMC prior to using any Person other than DMC or an Affiliate of DMC
(any such other Person, a “Competing Publisher”) for the publication or posting of any
foreclosure, public or other legal notices (whether in a legal or other newspaper or on an
Internet web site) in conjunction with any Practice(s) of Xxxxxxxxxx or any Xxxxxxxxxx Law
Firm whether within or outside the Territory, which such notice shall include (x) the name
of such Competing Publisher, (y) the applicable geographic area in which the Services of
such Competing Publisher are proposed to be used and (z) a description of the particular
Services of such Competing Publisher which are proposed to be used by Xxxxxxxxxx or the
applicable Xxxxxxxxxx Law Firm, as the case may be; and (2) enter into any contract or other
agreement with any Competing Publisher for any Services which cannot be terminated without
penalty by Xxxxxxxxxx or the applicable Xxxxxxxxxx Law Firm on less than thirty (30) days
prior written notice by Xxxxxxxxxx or the applicable Xxxxxxxxxx Law Firm, as the case may
be. Notwithstanding anything to the contrary in this Section 8.12, neither
Xxxxxxxxxx nor any Xxxxxxxxxx Law Firm shall be bound by the provisions of this Section
8.12 with respect to any given particular matter solely to the extent that (A) the
client of Xxxxxxxxxx or the applicable Xxxxxxxxxx Law Firm for such matter requests (without
any encouragement by or on the advice of Xxxxxxxxxx or the applicable Xxxxxxxxxx Law Firm)
in writing that Xxxxxxxxxx or the applicable Xxxxxxxxxx Law Firm, as the case may be, use
the Services of a Competing Publisher for such matter; provided, however,
that (i) both Xxxxxxxxxx and the applicable Xxxxxxxxxx Law Firm shall use their respective
commercially reasonable efforts to encourage such client to use the Services of DMC or one
or more of its Affiliates for such legal matter and (ii) Xxxxxxxxxx, both on behalf of
himself individually and the applicable Xxxxxxxxxx Law Firm, acknowledges and agrees that
for purposes of this clause (A) neither Lender Processing Services, Inc. nor any of its
Affiliates shall be considered to be a client of Xxxxxxxxxx or the applicable Xxxxxxxxxx Law
Firm, (B) Xxxxxxxxxx or the applicable Xxxxxxxxxx Law Firm determine, in good faith, that
there is an applicable Legal Requirement which requires that Xxxxxxxxxx or the applicable
Xxxxxxxxxx Law Firm, as the case may be, use the Services of a Competing Publisher for such
matter on behalf of such client of Xxxxxxxxxx or the applicable Xxxxxxxxxx Law Firm;
provided, however, that Xxxxxxxxxx or the applicable Xxxxxxxxxx Law Firm
shall promptly provide DMC with a written opinion of counsel to such effect, or (C)
Xxxxxxxxxx or the applicable Xxxxxxxxxx Law Firm receive a written directive from a
Governmental Body having jurisdiction over Xxxxxxxxxx or the applicable Xxxxxxxxxx Law Firm,
as the case may be, to the effect that Xxxxxxxxxx or the applicable Xxxxxxxxxx Law Firm, as
the case may be, must use the Services of a Competing Publisher for such matter on behalf of
such client of Xxxxxxxxxx or the applicable Xxxxxxxxxx Law Firm; provided,
however, that Xxxxxxxxxx or the applicable Xxxxxxxxxx Law Firm shall promptly
provide DMC with a written copy of any such written directive.
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1.5 New Definitions. The following definitions are hereby added to Section 9.12 of
the
Agreement in their applicable alphabetical order:
“Xxxxxxxxxx Law Firm” has the meaning set forth in Section 8.9 hereof.
“Competing Publisher” has the meaning set forth in Section 8.12 hereof.
“Default Specialist” has the meaning set forth in Section 8.9 hereof.
“New Services Agreement” has the meaning set forth in Section 8.9 hereof.
“New Territory” has the meaning set forth in Section 8.9 hereof.
“Practices” has the meaning set forth in Section 8.11 hereof.
“Services” has the meaning set forth in Section 8.12 hereof.
2. Certain Other Agreements.
2.1 Early Payment of 2010 Earn Out Payment. In consideration for (i) the Selling
Parties entering into this Amendment, (ii) Xxxxxxxxxx entering into that certain First Amendment to
Employment Agreement (the “Employment Agreement Amendment”), dated as of the date of this
Amendment, by and between the Buyer and Xxxxxxxxxx, (iii) Xxxxxxxxxx Florida and Xxxxxxxxxx
entering into that certain First Amendment to Services Agreement (the “Florida Services
Agreement Amendment”), dated as of the date of this Amendment, by and among the Buyer,
Xxxxxxxxxx Florida and Xxxxxxxxxx, and (iv) Xxxxxxxxxx Georgia and Xxxxxxxxxx entering into that
certain First Amendment to Services Agreement (the “Georgia Services Agreement Amendment”),
dated as of the date of this Amendment, by and among the Buyer, Xxxxxxxxxx Georgia and Xxxxxxxxxx,
the Buyer agrees, notwithstanding anything to the contrary in Section 2.3(a)(i) of the Agreement
and regardless of whether Adjusted EBITDA actually equals or exceeds the 2010 Adjusted EBITDA
Target for the 2010 Earn Out Period once determined in accordance with Section 2.3(b) of the
Agreement, to pay (such payment, the “Early 2010 Earn Out Payment”) to each Seller on
October 1, 2010 such Seller’s Allocable Percentage of the Earn Out Payment Amount for the 2010 Earn
Out Period to the bank account for such Seller set forth on Exhibit 2.1(a) to the Agreement. Upon
receipt of the Early 2010 Earn Out Payment by the Sellers, each Selling Party acknowledges and
agrees that the Sellers shall have received payment in full satisfaction of all of the Buying
Parties’ obligations under Section 2.3(a)(i) of the Agreement.
3. Reference to and Effect on the Agreement.
3.1 Each reference in the Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or
words of like import shall mean and be a reference to the Agreement as amended hereby.
3.2 Except as specifically amended above, the Agreement shall remain in full force and effect
and is hereby ratified and confirmed.
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4. Miscellaneous.
4.1 This Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same instrument. This
Amendment will become effective after (i) a counterpart to this Amendment has been executed and
delivered by each of the Buying Parties and each of the Selling Parties, (ii) a counterpart to the
Employment Agreement
Amendment has been executed and delivered by each of the Buyer and Xxxxxxxxxx, (iii) a
counterpart to the Florida Services Agreement Amendment has been executed and delivered by each of
the Buyer, Xxxxxxxxxx Florida and Xxxxxxxxxx, and (iv) a counterpart to the Georgia Services
Agreement Amendment has been executed and delivered by each of the Buyer, Xxxxxxxxxx Georgia and
Xxxxxxxxxx. This Amendment, and any amendments hereto, to the extent signed and delivered by means
of a facsimile machine or other electronic transmission (including transmission in portable
document format by electronic mail), shall be treated in all manner and respects and for all
purposes as an original agreement and shall be considered to have the same binding legal effect as
if it were the original signed version thereof delivered in person. At the request of any party
hereto, each other party hereto or thereto shall re-execute original forms thereof and deliver them
to all other parties, except that the failure of any party to comply with such a request shall not
render this Amendment, and any amendments hereto, invalid or unenforceable. No party hereto or to
any such other agreement or instrument shall raise the use of a facsimile machine or other
electronic transmission to deliver a signature, or the fact that any signature was transmitted or
communicated through the use of a facsimile machine or other electronic transmission, as a defense
to the formation or enforceability of a contract and each such party forever waives any such
defense.
4.2 Section headings in this Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other purpose.
4.3 The language used in this Amendment will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction will be applied against
any party.
4.4 If and to the extent there are any inconsistencies between the Agreement and this
Amendment, the terms of this Amendment shall control.
4.5 This Amendment shall be governed by and construed in accordance with the laws of the State
of Delaware without regard to its conflict of laws doctrines.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
hereinabove written.
| AMERICAN PROCESSING COMPANY, LLC |
||||
| By: | / Xxxxx X. Xxxxxx / | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Its: | Vice President | |||
| THE XXXXX COMPANY (f/k/a XXXXX MEDIA COMPANY) |
||||
| By: | / Xxxxx X. Xxxxxx / | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Its: | Executive Vice President and Chief Operating Officer |
|||
| XXXXX X. XXXXXXXXXX, P.A. |
||||
| By: | / Xxxxx Xxxxxxxxxx / | |||
| Name: | Xxxxx Xxxxxxxxxx | |||
| Its: | President | |||
| THE XXXXXXXXXX FIRM, P.C. |
||||
| By: | / Xxxxx Xxxxxxxxxx / | |||
| Name: | Xxxxx Xxxxxxxxxx | |||
| Its: | President | |||
| XXXXXXXXXX TITLE, INC. |
||||
| By: | / Xxxxx Xxxxxxxxxx / | |||
| Name: | Xxxxx Xxxxxxxxxx | |||
| Its: | President | |||
| / Xxxxx Xxxxxxxxxx / | ||||
| XXXXX X. XXXXXXXXXX, individually | ||||
