AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
Exhibit
2.3
AMENDMENT
NO. 1 TO
THIS
AMENDMENT NO. 1 TO STOCK PURCHASE
AGREEMENT (“AMENDMENT”) is
made
and entered into this October 5, 2007, by and among Capital Corp of the
West, a
California bank holding company (“Buyer”), Bay View Funding, a California
corporation, and Xxxxx Xxxxx.
In
accordance with Section 11.1 of the
Stock Purchase Agreement by and among the parties dated July 20,
2007:
1. Section
3.1 of such Stock Purchase Agreement is hereby amended to read in its entirety
as follows:
3.1 Closing
Date. The closing date with respect to the transactions
provided for in this Agreement shall be October 1, 2007 (the “Closing
Date”).
2. Paragraph
1 of Exhibit 2.2 of such Stock Purchase Agreement is hereby amended to
read in
its entirety as follows:
1. There
will be a payment at Closing (the “Closing Payment”) in an amount equal to 85%
of 3.25 times the trailing twelve months earnings of Company before interest,
taxes, depreciation and amortization (the “EBITDA”) as calculated as of April
30, 2007 at $4,225,044.54. Such Closing Payment shall be payable in
the form of cash and promissory notes as follows:
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(a)
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Shareholder
Xxxxx Xxxxx shall receive a promissory note from Buyer in the
amount of
three million two hundred fifty thousand dollars
($3,250,000.00);
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(b)
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Shareholder
Xxxxxx X. Xxxxxxx, Trustee under the Xxxxxx X. Xxxxxxx Revocable
Trust,
shall receive a promissory note from Buyer in the amount of two-hundred
fifty thousand dollars ($250,000);
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(c)
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Shareholder
Xxxxxxx Xxxxxxxxx shall receive a promissory note from Buyer
in the amount
of two- hundred fifty thousand dollars
($250,000.00);
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(d)
|
Shareholder
Xxxxxx Xxxxxx shall receive a promissory note from Buyer in the
amount of
two-hundred fifty thousand dollars
($250,000.00).
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(e)
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The
remainder of the Closing Payment shall be paid by Buyer in cash
pursuant
to Exhibit
X to this Amendment.
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Said
EBITDA could be subjected to certain adjustments for non-recurring items,
extraordinary revenue and expenses, and known material changes each as
identified during the due diligence process and mutually agreed to by the
parties in writing prior to the Closing. The parties expressly agree
that no allocation of expenses or overhead from Buyer will be included
unless
mutually agreed in writing by both parties prior to the Closing. For
purposes of the computations detailed in sections 3 and
4
below, the Earn Out calculations begin the day following the Closing
Date. Set forth in
Attachment 2.2 are examples of the calculation of EBITDA for illustrative
purposes.
3. No
other
changes are intended with respect to the Stock Purchase Agreement or any
Exhibits thereto.
The
undersigned, intending to be legally bound hereby, have duly executed and
delivered this Amendment as of the date first above written.
BY: /s/ Xxxxxx
X.
Xxxxxx
Xxxxxx
X. Xxxxxx
President
&
Chief
Executive
Officer
BAY
VIEW FUNDING
BY: /s/ Xxxxx
Xxxxx
Xxxxx
Xxxxx
President
&
Chief
Executive
Officer
SHAREHOLDER
REPRESENTATIVE:BY: /s/ Xxxxx
Xxxxx
Xxxxx
Xxxxx
