AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
Exhibit 99.2
EXECUTION COPY
AMENDMENT NO. 1 TO
This Amendment No. 1 to Asset Purchase Agreement (this “Amendment”) is made and
entered into as of April 3, 2009, by and among DELOITTE LLP, a Delaware limited liability
partnership (“Buyer”), BEARINGPOINT, INC., a Delaware corporation (“BearingPoint”),
and each of the Subsidiaries of BearingPoint that are signatories hereto (BearingPoint and each of
the Subsidiaries of BearingPoint that are signatories hereto are sometimes herein referred to
collectively as “Sellers” and individually as a “Seller”). Sellers and Buyer are
referred to herein collectively as the “Parties.”
RECITALS
WHEREAS, the Parties entered into an Asset Purchase Agreement, dated as of March 23, 2009 (the
“Asset Purchase Agreement”);
WHEREAS, in accordance with Section 10.09 of the Asset Purchase Agreement, the Parties wish to
amend the Asset Purchase Agreement and certain Schedules and Exhibits thereto, as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1. Amendments to the Asset Purchase Agreement.
(a) Section 2.12 of the Asset Purchase Agreement is hereby amended to add the following
language after Section 2.12(s):
“(t) Nothing in this Agreement shall interfere with the applicability of the
Anti-Assignment Act, 41 U.S.C. § 15 (the “Act”) or otherwise affect the
rights of the United States under the Act.”
(b) Section 7.02(b)(i) of the Asset Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
“(i) (A) in the event this Agreement is terminated pursuant to Sections
7.01(b)(i) (solely as a result of a breach of any covenant or agreement
which causes the condition in Section 6.01(a) to not be met as of
the date of termination), or Section 7.01(b)(iii) hereto by virtue
of the failure of the conditions set forth in Sections 6.01(a)
(solely as a result of the breach of any covenant or agreement),
6.01(e) or 6.01(f) hereto to be satisfied or waived, and in
any such case Sellers establish that the breach of covenant or failure to
satisfy a closing condition was wholly beyond the control of Sellers, the
Expense Reimbursement shall be paid by Sellers to Buyer, or
(B) in the event this Agreement is terminated pursuant to (I) Section
7.01(b)(i) (solely as a result of a breach of any covenant or agreement
which causes the condition in Section 6.01(a) to not be met as of
the date of termination) or Section 7.01(b)(iii) hereto by virtue of
the failure of the conditions set forth in Sections 6.01(a) (solely
as a result of the breach of any covenant or agreement), 6.01(e) or
6.01(f) hereto to be satisfied or waived, and in any such case
Sellers do not establish that the breach of covenant or failure to satisfy a
closing condition was wholly beyond the control of Sellers, or (II)
Section 7.01(b)(ii), 7.01(b)(iv), or 7.01(f) hereto,
the Break-Up Fee and the Expense Reimbursement shall be paid by Sellers to
Buyer.”
(c) The definition of “Expense Reimbursement” is hereby amended and restated in its entirety
to read as follows:
“ “Expense Reimbursement” shall mean an amount, not to exceed (i)
one million five hundred thousand dollars ($1,500,000) in the case of
expense reimbursement pursuant to Section 7.02(b)(i)(B) hereto, (ii)
five million dollars ($5,000,000) in the case of expense reimbursement
pursuant to Section 7.02(b)(ii) hereto, (iii) two million five
hundred thousand dollars ($2,500,000) in the case of expense reimbursement
pursuant to Section 7.02(b)(iii) hereto, or (iv) twelve million
dollars ($12,000,000) in the case of expense reimbursement pursuant to
Section 7.02(b)(i)(A) hereto; in each case equal to Buyers’
reasonable and documented out-of-pocket costs and expenses (including (x)
fees and expenses of counsel, financial advisors and other professionals and
consultants, (y) its share of the HSR Act filing fee and (z) expenses for
professional personnel of Buyer or its Subsidiaries performing services with
respect to the transactions contemplated by the Transaction Agreements based
upon Buyer’s customary cost rates for internal projects) incurred by Buyer
in connection with this Agreement and the transactions contemplated hereby.”
2. Amendment and Restatement of Schedules to the Asset Purchase Agreement. Exhibits
6.01(e)(2) and 6.01(e)(3) to Schedule 6.01(e) to the Asset Purchase Agreement are hereby amended
and restated in their entirety, to read as set forth on Exhibits A-1 and A-2
hereto, respectively.
3. Miscellaneous.
(a) Except as expressly modified herein, the Asset Purchase Agreement (including the Schedules
and Exhibits thereto), are unchanged and remain in full force and effect.
(b) The captions contained in this Amendment are for convenience of reference only, shall not
be given meaning and do not form part of this Amendment.
2
(c) This Amendment is made a part of, and is incorporated into, the Asset Purchase Agreement
and is subject to all provisions therein, including the assignment, choice of law and dispute
resolution provisions thereof. In the event of any dispute concerning the validity of this
Amendment, this Amendment shall be governed, including as to validity, interpretation and effect,
by, and construed in accordance with, the internal Laws of the State of New York applicable to
agreements made and fully performed within the State of New York.
(d) Facsimile transmission of any signed original document and/or retransmission of any signed
facsimile transmission will be deemed the same as delivery of an original. This Amendment may be
executed in one or more counterparts, each of which when executed shall be deemed to be an
original, but all of which shall constitute but one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
IN WITNESS WHEREOF, each of the Parties has duly executed this Amendment as of the date first
above written.
| DELOITTE LLP | ||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | National Managing Partner, Corporate Development | |||
| BEARINGPOINT, INC. | ||||
| By: | /s/ F. Xxxxx Xxxxxxx | |||
| Name: | F. Xxxxx Xxxxxxx | |||
| Title: | Chief Executive Officer | |||
| BEARINGPOINT AMERICAS, INC. | ||||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Director | |||
| BEARINGPOINT GLOBAL OPERATIONS, INC. | ||||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Director | |||
Counterpart Signature Page
Amendment No. 1 to APA
Amendment No. 1 to APA
| BE NEW YORK HOLDINGS, INC. | ||||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Director | |||
| METRIUS, INC. | ||||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Director | |||
| OAD GROUP, INC. | ||||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Director | |||
| BEARINGPOINT SOUTHEAST ASIA LLC | ||||
| By: | BearingPoint, LLC, its Sole Member | |||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Vice President & Secretary | |||
Counterpart Signature Page
Amendment No. 1 to APA
Amendment No. 1 to APA
| I2 NORTHWEST LLC |
||||
| By: | BearingPoint, Inc., its Sole Member | |||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Vice President & Secretary | |||
| BEARINGPOINT, LLC | ||||
| By: | BearingPoint, Inc., its Sole Member | |||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Executive Vice President & Chief Legal Officer | |||
| I2 MID ATLANTIC LLC | ||||
| By: | BearingPoint, LLC, its Sole Member | |||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Vice President & Secretary | |||
| BEARINGPOINT BG, LLC |
||||
| By: | BearingPoint Global Operations, Inc., its Sole Member | |||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Director | |||
Counterpart Signature Page
Amendment No. 1 to APA
Amendment No. 1 to APA
| BEARINGPOINT ENTERPRISE HOLDINGS, LLC |
||||
| By: | BearingPoint, LLC, it Sole Member | |||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Vice President & Secretary | |||
| PELOTON HOLDINGS, LLC |
||||
| By: | BearingPoint, LLC, its Sole Member | |||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Vice President & Secretary | |||
| BEARINGPOINT RUSSIA, LLC |
||||
| By: | BearingPoint, LLC, its Sole Member | |||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Vice President & Secretary | |||
| BEARINGPOINT PUERTO RICO, LLC |
||||
| By: | BearingPoint Americas, Inc., its Sole Member | |||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Vice President & Secretary | |||
Counterpart Signature Page
Amendment No. 1 to APA
Amendment No. 1 to APA
| BEARINGPOINT ISRAEL, LLC |
||||
| By: | BearingPoint, LLC, its Sole Member | |||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Vice President & Secretary | |||
| BEARINGPOINT SOUTH PACIFIC, LLC |
||||
| By: | BearingPoint, LLC, its Sole Member | |||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Vice President & Secretary | |||
| DALLAS PROJECT HOLDINGS LIMITED | ||||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Director | |||
| OAD ACQUISITION CORP | ||||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Director | |||
Counterpart Signature Page
Amendment No. 1 to APA
Amendment No. 1 to APA
| BEARINGPOINT GLOBAL, INC. |
||||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Director | |||
| SOFTLINE CONSULTING AND INTEGRATORS INC. |
||||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Director | |||
| SOFTLINE ACQUISITION CORP. |
||||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Director | |||
| BEARINGPOINT INTERNATIONAL I, INC. |
||||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Director | |||
| BEARINGPOINT USA, INC. |
||||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Director | |||
Counterpart Signature Page
Amendment No. 1 to APA
Amendment No. 1 to APA
| BEARINGPOINT LP |
||||
| By: | BearingPoint Canada Holding I, its General Partner | |||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Vice President & Secretary | |||
Counterpart Signature Page
Amendment No. 1 to APA
Amendment No. 1 to APA
