AMENDMENT NO. 5 TO STOCK PURCHASE AGREEMENT
Exhibit
2.1
AMENDMENT
NO. 5 TO
THIS AMENDMENT NO. 5, dated as of September 10, 2008
(this “Amendment”), to the STOCK PURCHASE
AGREEMENT, as previously amended, 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 Article I of the Purchase
Agreement. The following definitions are hereby inserted
alphabetically in Section 1.1 of the Purchase Agreement as
follows:
“Aggregate Investment Amount” shall have the
meaning set forth in the Subscription Agreement.
“Company Expenses” means $12,000,000 plus, to
the extent not paid prior to the Closing Date, (i) all fees
and expenses of the Company or any Seller related to the
transactions contemplated by this Agreement, including the fees
and expenses of Xxxx Xxxxx and UBS Securities LLC and
(ii) any transaction bonus, discretionary bonus,
“stay-put” or other compensatory payments to be made
to any optionholder or current or former employee, board member
or consultant of the Company or any Company Subsidiary at
Closing as a result of the execution of this Agreement or
consummation of the transactions contemplated hereby or at the
discretion of the Company or any Company Subsidiary (other than
any payments due as a result of any, direct or indirect, action
taken by the Buyer or any of its Affiliates from and after the
Closing).
“Earn-Out Consideration” means
(i) twenty-five percent (25%) of the EBITDA in excess of
$52,500,000 if paid in cash or (ii) thirty-three and one
third percent (33
1/3%)
of the EBITDA in excess of $52,500,000 if paid in Buyer’s
Stock, calculated at the Per Share Earn-Out Price.
“Earn-Out Periods” means the five successive
twelve-month periods beginning January 1, 2009 and ending
December 31, 2013.
“EBITDA” means the consolidated earnings before
interest, taxes, depreciation and amortization as defined in the
Buyer’s senior credit facility existing as of the Closing
Date (as amended, modified and replaced from time to time), as
adjusted to reflect EBITDA of any acquisitions made during the
applicable period as if such acquisition had been effective on
the first day of the fiscal year in which such acquisition is
consummated.
“Per Share Earn-Out Price” means the average
closing sales price of Buyer’s Stock for the ten
consecutive trading days prior to the payment of the Earn-Out;
provided that the Per Share Earn Out Price shall be equal
to the “Per Share Price” (as defined in the Equity
Commitment) for the applicable fiscal year in which the Earn-Out
Consideration is paid in Buyer’s Stock.
2. Amendment to Section 2.2 of the Purchase
Agreement. The word “and” shall be inserted at the
end of Section 2.2(h) and the “;” at the end of
Section 2.2(i) shall be deleted and replaced with a
“.” Section 2.2(j) of the Purchase Agreement is
hereby deleted in its entirety.
3. Amendment to Section 13.1 of the Purchase
Agreement. Section 13.1 of the Purchase Agreement is
hereby amended and restated in its entirety as follows:
“Except as expressly provided herein, all costs and
expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such costs and expenses; provided, that,
to the extent applicable, the Company Expenses shall be paid by
the Company on the Closing Date in accordance with
Section 2.2(h). The Sellers shall cause all such Company
Expenses to be invoiced at least two (2) Business Days
prior to the Closing Date.”
4. Amendment to Annex A to the Purchase
Agreement.
(a) Annex A to the Purchase Agreement is hereby
replaced in its entirety with Annex A hereto as follows:
Annex A
Sellers,
Shares and Preferred Stock
|
Seller
|
Common Stock | Preferred Stock | ||||||
|
Kohlberg Investors V, L.P.
|
46,281,808 | 5,277.5 | ||||||
|
Xxxxxxxx XX Investors V, L.P.
|
33,660,144 | 3,837.5 | ||||||
|
Kohlberg Offshore Investors V, L.P.
|
3,100,197 | 355.0 | ||||||
|
Kohlberg Partners V, L.P.
|
2,606,117 | 530.0 | ||||||
|
KOCO Investors V, L.P.
|
2,044,042 | — | ||||||
|
S.A.C. Domestic Investments, L.P.
|
548,077 | 36.5 | ||||||
|
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 | 10,036.5 | ||||||
5. Amendment to Annex D to the Purchase
Agreement. Annex D to the Purchase Agreement is
hereby replaced in its entirety with the new Annex D
attached hereto as Attachment A.
6. Earnout. After the conclusion of each Earn-Out
Period and within thirty (30) days of the Buyer’s
filing of its annual report on
Form 10-K
with the SEC, the Buyer shall pay to the Sellers and the
Optionholders in accordance with their respective Adjustment
Amount Transaction Percentage the Earn-Out Consideration for
such Earn-Out Period; provided that the maximum Earn-Out
Consideration for all such Earn-Out Periods (whether paid in
cash, Buyer’s Stock or any combination thereof) shall not
exceed $12,000,000 in the aggregate. The Buyer shall determine
in its sole and absolute discretion whether to pay the Earn-Out
Consideration in cash or Buyer’s Stock.
7. Equity Commitment. The Company hereby consents to
the termination, amendment, modification and supplementing of
the existing Equity Commitment Letter and its replacement with
the letter agreement attached hereto as Attachment B,
which shall be in full force and effect as of the date hereof.
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8. Amendment to Schedules to the Purchase Agreement.
Schedule 4.5 is hereby amended and restated in its entirety
as set forth on Attachment C attached hereto.
Schedule 5.2 is hereby amended and restated in its entirety
as set forth on Attachment D attached hereto.
9. New Condition to Closing. The following shall be
added as new conditions to Closing in Sections 8.15 and 9.9:
“The Subscription Agreement, dated as of the date hereof,
between Buyer and MBF Healthcare Partners, L.P. shall be in full
force and effect.”
10. 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.
11. 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. 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.
12. Headings. The headings contained in this
Amendment are intended solely for convenience and shall not
affect the rights of the parties to this Amendment.
13. 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.
14. 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.
| By: |
/s/
Xxxxx X. Xxxx
|
Name: Xxxxx X. Xxxx
| Title: Senior Vice President and
Chief Operating Officer |
||
CRITICAL HOMECARE SOLUTIONS HOLDINGS, INC.
| By: |
/s/
Xxxxxx Xxxxxxxx
|
Name: Xxxxxx Xxxxxxxx
| Title: Authorized Representative | ||
KOHLBERG INVESTORS V, L.P.
| By: | Kohlberg Management V, L.L.C., its general partner |
| By: |
/s/
Xxxxxx Xxxxxxxx
|
Name: Xxxxxx Xxxxxxxx
| Title: Authorized Representative | ||
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Attachment
A
ANNEX
D
Indemnity Escrow Allocation Percentage
| Indemnity Escrow | ||||
| Seller | Allocation Percentage | |||
Kohlberg Investors V, L.P. |
51.2 | % | ||
Xxxxxxxx XX Investors V, L.P. |
37.2 | % | ||
Kohlberg Offshore Investors V, L.P. |
3.4 | % | ||
Kohlberg Partners V, L.P. |
2.9 | % | ||
KOCO Investors V, L.P. |
2.3 | % | ||
S.A.C. Domestic Investments, L.P. |
0.6 | % | ||
Blackstone Mezzanine Partners II L.P. |
2.3 | % | ||
Blackstone Mezzanine Holdings II L.P. |
0.1 | % | ||
Total |
100 | % | ||
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