Exhibit 2.2
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
This Amendment No. 1, dated August 15, 2001, to the Stock Purchase
Agreement dated July 12, 2001 (the "STOCK PURCHASE AGREEMENT") between CH
Acquisitions LLC, a Delaware limited liability company (the "PURCHASER"), Xxxxxx
Holdings, Inc., a Massachusetts corporation (the "COMPANY") and the stockholders
of the Company, is entered into by the Purchaser and the Management Sellers
listed on the signature pages hereto (the "ROLLOVER STOCKHOLDERS"). Terms used,
but not defined in this Amendment No. 1 are used herein with the meanings
ascribed in the Stock Purchase Agreement.
RECITALS
WHEREAS, pursuant to the Stock Purchase Agreement the Management Sellers
have agreed to sell to the Purchaser and the Purchaser has agreed to purchase
all of the Class C stock, $.01 par value, of the Company ("CLASS C STOCK") held
by the Management Sellers,
WHEREAS, each Rollover Stockholder and the Purchaser desires that the
Rollover Stockholders retain an equity interest in the Company through the
retention of shares of Class C Stock,
WHEREAS, each Rollover Stockholder will enter into a Management Stock
Retention Agreement dated as of the Closing Date,
WHEREAS, pursuant to the Stock Purchase Agreement the Purchaser has agreed
to pay cash to each holder (an "OPTION HOLDER") of a Company Option,
WHEREAS, certain Option Holders (the "ROLLOVER OPTIONHOLDERS") and the
Purchaser desire that such Rollover Optionholders retain an equity interest in
the Company through the retention of Company Options,
WHEREAS, each Rollover Optionholder will surrender his or her Stock Option
Agreement to the Company in exchange for a restated Stock Option Agreement at
the Closing,
WHEREAS, the Buyer and each Rollover Stockholder and Rollover Optionholder
desire to amend the Stock Purchase Agreement to reflect the changes recited
above, and
WHEREAS, Sections 2.6 and 10.12 of the Stock Purchase Agreement permit the
Purchaser and the Management Sellers to amend Section 2.4, Exhibit A and Exhibit
D to the Stock Purchase Agreement without the consent of any other party that is
not adversely affected by such action,
NOW THEREFORE, In consideration of the foregoing and the representations,
warranties and agreements set forth herein, the parties, intending to be legally
bound, agree as follows:
1. AMENDMENT OF STOCK PURCHASE AGREEMENT. The Stock Purchase Agreement is
amended as follows:
1.1. SECTION 2.4 COMPANY STOCK OPTIONS. Section 2.4 of the Stock Purchase
Agreement is hereby deleted and replaced in its entirety with the following:
"On the Closing Date the Company shall with regard to each holder of a
Company Option that is outstanding as of the Closing Date (a) pay the
amount, if any, set forth next to such holder's name on Exhibit D under the
column titled "Option Cashout Amount", which amount shall equal for each
Share covered by such Company Option, a cash amount equal to the Per Share
Amount less the applicable per share exercise price of such Company Option
and any withholding taxes required by applicable law and (b) permit each
holder to retain the Company Option for the number of Shares, if any, set
forth next to such holder's name on Exhibit D under the column titled
"Rollover Options" (the "ROLLOVER OPTIONS"). Each holder of a Company
Option that retains Rollover Options agrees not to exercise his or her
right under any Rollover Option to receive cash in connection with the
Approved Sale (as defined in the Company Options) triggered by the Closing
as more fully set forth in an agreement to be entered into between the
Company and such holder. Each Company Option, other than the Rollover
Options, shall terminate on the Closing Date."
1.2. EXHIBIT A. Exhibit A to the Stock Purchase Agreement is hereby deleted
and replaced in its entirety with Exhibit A hereto.
1.3. EXHIBIT D. Exhibit D to the Stock Purchase Agreement is hereby deleted
and replaced in its entirety with Exhibit D hereto.
2. EXECUTION IN COUNTERPARTS; FACSIMILE SIGNATURES. This Amendment No. 1
may be executed in two or more counterparts, each of which shall be considered
an original instrument, but all of which shall be considered one and the same
amendment to the Stock Purchase Agreement, and shall become binding when one or
more counterparts have been signed by each of the parties and delivered to each
of the Company and the Purchaser. Facsimile signatures shall be treated as
originals to the extent the sender can show that such facsimile was actually
transmitted.
3. GOVERNING LAW. This amendment shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws. The parties hereby irrevocably submit to the jurisdiction
of the courts of the State of New York and the Federal courts of the United
States of America located in the Borough of Manhattan, the City of New York
solely in respect of the interpretation and enforcement of the provisions of
this amendment and the transactions contemplated hereby and hereby waive, and
agree not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof, that it is not subject thereto or that
such action, suit or proceeding may not be brought or is not maintainable in
said courts or that the venue thereof may not be appropriate or that this
amendment may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such courts. The parties consent to and grant
any such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided
-2-
in the Stock Purchase Agreement or in such other manner as may be permitted by
law shall be valid and sufficient service thereof.
4. ENTIRE AGREEMENT; AMENDMENTS. Except as specifically amended hereby, the
provisions of the Stock Purchase Agreement shall remain unmodified and the Stock
Purchase Agreement as amended hereby is hereby confirmed as being in full force
and effect. The Stock Purchase Agreement, as amended by this Amendment No. 1,
including the schedules and exhibits thereto and hereto, contains the entire
understanding of the parties hereto with regard to the subject matter contained
herein. The parties hereto, by mutual agreement in writing, may amend, modify
and supplement this Amendment No. 1.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be executed as of the day and year first above written.
CH ACQUISITIONS LLC, a Delaware limited
liability company
By: /S/XXXX X. XXXXX
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
(signatures continue on the next page)
MANAGEMENT SELLERS / ROLLOVER OPTION HOLDERS
By: /S/ XXXXXXXXX X. XXXXX, XX
-----------------------------
Name: Xxxxxxxxx X. Xxxxx, XX
By: /S/ XXXXX X. XXXXX By: /S/ XXXXXX XXXXXXXX
----------------------------- ----------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxx Xxxxxxxx
By: /S/ XXXXXXX X. XXXXXXX, XX. By: /S/ XXXXXXX X. XXXXX
----------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx. Name: Xxxxxxx X. Xxxxx
By: /S/ XXXXXXX X. XXXXX By: /S/ XXXXXXX X. XXXXXXX
----------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxx
By: /S/ XXXXXXXX X. XXXXXX By: /S/ XXXXXX X. XXXXXX, XX.
----------------------------- ----------------------------
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
By: /S/ X. XXXXXX XXXXXX By:/S/ XXX X. XXXXX
----------------------------- ----------------------------
Name: X. Xxxxxx Xxxxxx Name: Xxx X. Xxxxx
By: /S/ XXXX X. XXXXXX By: /S/ XXXXXXX X. XXXXXXXXX
----------------------------- ----------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxxxx
By: /S/ XXXXX X. XXX By:/S/ XXXXX X. XXXX
----------------------------- ----------------------------
Name: Xxxxx X. Xxx Name: Xxxxx X. Xxxx
By: /S/ XXXXXX X. XXXXX By:/S/ XXXXXX X. XXXXX
----------------------------- ----------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXXX X. XXXXXX
----------------------------- ----------------------------
Name: Xxxxx X.Xxxxxxx Name: Xxxxx X. Xxxxxx
