AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
Exhibit 2.2
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (this “Agreement”) is entered into as
of the 31st day of October, 2006, by and between Platinum Equity, LLC, a Delaware limited liability
company (“Platinum”), and Xxxxxxxx & Company, a Georgia corporation (“Xxxxxxxx”
and, together, with Platinum, the “Parties”). Capitalized terms used but not otherwise
defined herein shall have the meaning given to them in the Stock Purchase Agreement (as defined
below).
RECITALS
A. Platinum and Xxxxxxxx are parties to that certain Stock Purchase Agreement, dated as of
August 18, 2006 (the “Stock Purchase Agreement”), pursuant to which, among other things,
Platinum has agreed to sell all of the outstanding shares of capital stock of Broadspire Management
Services, Inc. (the “Company”) to Crawford.
B. The Parties desire to amend the Stock Purchase Agreement as provided herein.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as follows:
1. Amendment of Section 2.1 to the Stock Purchase Agreement.
(a) The Special Excluded Assets and the Special Excluded Liabilities. The provisions
of Section 2.1 of the Stock Purchase Agreement notwithstanding, Platinum shall not be required to,
or to cause the Company and the Subsidiaries to, take any action to (i) sell, assign, distribute or
otherwise transfer the Excluded Assets listed on Exhibit A hereto (the “Special
Excluded Assets”) to Platinum or to an Affiliate of Platinum prior to the Closing or (ii)
assign or transfer to Platinum or an Affiliate of Platinum prior to the Closing, or pay, extinguish
or otherwise settle prior to the Closing any of the Excluded Liabilities listed on Exhibit
B hereto (the “Special Excluded Liabilities”). Notwithstanding the foregoing, (x) the
Special Excluded Assets shall continue to constitute “Excluded Assets” for all purposes under the
Stock Purchase Agreement, (y) the Special Excluded Liabilities shall continue to constitute
“Excluded Liabilities” for all purposes under the Stock Purchase Agreement and (z) all economic
burdens and benefits resulting from the Special Excluded Assets and Special Excluded Liabilities
shall be borne by and be for the benefit and for the account of Platinum.
(b) Conduct of the Special Proceedings. Platinum shall (i) be responsible for the
handling of all matters related to the Special Excluded Assets and the Special Excluded Liabilities
(the “Special Proceedings”), (ii) bear the fees and expenses of counsel engaged in each
Special Proceeding, and (iii) shall have the exclusive right to control the payment, settlement,
negotiation and other treatment of each Special Proceeding; provided, however, that, to the extent
that any such settlement includes any agreement by Xxxxxxxx, the Company or any Subsidiary to take,
or prohibits Xxxxxxxx, the Company or any Subsidiary from taking, any action that will not be fully
performed by Platinum or imposes any post-settlement obligation on Xxxxxxxx, the Company or any
Subsidiary that will not be fully satisfied by Platinum, then
Platinum may not enter into such settlement without the prior written consent of Xxxxxxxx,
such consent not to be unreasonably withheld, conditioned or delayed. Platinum shall promptly pay
on behalf of the Company or any Subsidiary (or provide funds necessary to enable Xxxxxxxx, the
Company or any Subsidiary to pay) any amounts required to be paid by them in connection with any
Special Proceeding, including but not limited to amounts required as the result of a ruling in such
Special Proceeding or pursuant to any settlement or compromise thereof (any such payment, a
“Disposition Payment”); provided, however, that if, at the time any Disposition Payment is
required to be paid to a third party, any payment made by Platinum to Xxxxxxxx, the Company or any
Subsidiary pursuant to this sentence to enable Xxxxxxxx, the Company or such Subsidiary to make
such Disposition Payment to such third party would be required to be paid to Xxxxxxxx’x lenders
pursuant to the terms of Xxxxxxxx’x credit facility, then Platinum and Xxxxxxxx agree to take
actions as are necessary such that Platinum shall pay such Disposition Payment directly to such
third party on behalf of the Company or any Subsidiary; provided further that Xxxxxxxx shall give
Platinum prompt written notice if at any time the situation has arisen where any such Disposition
Payment would be required to be paid to Xxxxxxxx’x lenders pursuant to the terms of Xxxxxxxx’x
credit facility. In addition, Platinum shall reimburse Xxxxxxxx, the Company or any Subsidiary, as
applicable, for any reasonable costs and expenses incurred by Xxxxxxxx, the Company or such
Subsidiary, as applicable, in connection with any Special Proceeding. As further provided in
Section 10.2(f) of the Stock Purchase Agreement, Xxxxxxxx and the other Purchaser Indemnified
Parties shall provide all reasonable support and assistance to Platinum, its Affiliates and
Representatives, as they may reasonably request (including, without limitation, access to personnel
and information) in connection with any Special Proceeding; provided, however, that
(x) Platinum shall reimburse any out-of-pocket expenses (but no internal charges for Xxxxxxxx or
Company personnel providing such assistance) incurred in providing such support and assistance and
(y) such requests for assistance shall not unreasonably interfere with or disrupt the operation of
Xxxxxxxx’x or the Company’s business.
(c) Payment of Funds. Xxxxxxxx shall, or shall cause the Company or any Subsidiary,
as applicable, to, promptly pay over to Platinum any and all amounts received by the Company or
such Subsidiary in connection with any Special Proceeding, including, without limitation, any
payments received in settlement, compromise, discharge, or upon final disposition of any proceeding
related thereto; provided, however, that Xxxxxxxx shall have the right to deduct from any such
payment amounts required to be paid pursuant to Section 1(b), but only if and to the extent that
there is no bona fide dispute as to Platinum’s obligation to make such payment pursuant to Section
1(b).
(d) Further Assurances. Each Party will execute, acknowledge and deliver (or cause to
be executed, acknowledged or delivered) such documents and instruments that may be reasonably
requested by the other Party, and will take any other action consistent with the terms of this
Agreement, for the purpose of giving effect to the transactions contemplated by this Agreement.
Without limiting the scope of the foregoing, Xxxxxxxx shall, and shall cause the Company and the
Subsidiaries to, instruct and authorize any legal counsel representing the Company or any
Subsidiary in any Special Proceeding to enter into an engagement letter, common defense agreement
or other similar agreement to facilitate the control of such Special Proceeding by Platinum and to
preserve all privileges, including the attorney client privilege and work product privilege, with
respect to such Special Proceeding.
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2. Indemnification. Platinum shall indemnify and hold harmless Purchaser Indemnified
Parties for any Damages relating to or arising from the Special Excluded Assets, the Special
Excluded Liabilities or for any Damages arising out of or resulting from the arrangements set forth
in this Agreement on the same terms as set forth in Article X of the Stock Purchase Agreement;
provided, however, that (a) Section 10.2(e), 10.2(f), 10.3, 10.6 and 10.7 of the
Stock Purchase Agreement shall not apply to the indemnity set forth in this Agreement and (b)
neither Crawford, the Company nor any Subsidiary shall have the obligation to seek recovery from
any insurance company or other insurance provider with respect to any Damages for which indemnity
is provided under this Agreement.
3. Additional Special Excluded Asset. The parties acknowledge their respective
obligations under Section 5.6(f) of the Stock Purchase Agreement (including, without limitation,
Xxxxxxxx’x obligation to act as a paying agent on behalf of Platinum) and agree that at the point
that Platinum transmits to Xxxxxxxx, the Company or any Subsidiary any payment to be paid pursuant
to Section 5.6(f) of the Stock Purchase Agreement, such payment shall be deemed a Special Excluded
Asset hereunder.
4. Certain Other Matters.
(a) Certain Payments. Platinum shall (after receipt of a written invoice with
reasonable supporting documentation with respect thereto from Xxxxxxxx) pay Xxxxxxxx as and when
due for the first $769,000 of payments, if any, made pursuant to (A) those certain severance
letters dated June 12, 2006 listed on Exhibit C hereto (for the avoidance of doubt such
amount shall be the full amount stated in such severance letter including any amounts that
previously would have been payable to such employee pursuant to an offer letter referenced in such
severance letter), but only if required to be paid as the result of the termination of any
applicable Employees as the result of the termination of employment by the Company at any time
after the Closing but on or prior to the first anniversary of the Closing Date, and (B) the stay
bonus agreements set forth on Exhibit D hereto.
(b) Property Insurance. Without limiting the generality of Section 3.20 of the Stock
Purchase Agreement, Crawford acknowledges that it is solely responsible for arranging for insurance
with respect to the facilities leased by the Company or any Subsidiary for all periods beginning
after the Closing and that no representation has been made by Seller as to the cost of any such
insurance.
5. Miscellaneous.
(a) No Other Amendment or Waiver. Except as expressly provided herein, this Agreement
shall not amend the Stock Purchase Agreement or waive any requirement thereunder. The Stock
Purchase Agreement, as amended by this Agreement, shall remain in full force and effect in
accordance with its terms. Any dispute concerning the obligations of the Parties under this
Agreement shall be resolved in accordance with the provisions of Section 12.3 of the Stock Purchase
Agreement.
(b) Succession and Assignment. Subject to the next sentence, this Agreement shall be
binding upon and inure to the benefit of the parties named herein and their respective
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successors and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests or obligations hereunder without the prior written consent of the other Party
hereto. Except as expressly permitted herein, Xxxxxxxx shall not permit the Company or any
Subsidiary to assign any rights and obligations in and to the Special Excluded Assets and Special
Excluded Liabilities to any person without the prior written consent of Platinum. Notwithstanding
the foregoing, nothing in this Section 4(b) shall prevent Xxxxxxxx, without the consent of any
other party, from assigning all or part of its rights or obligations hereunder by way of collateral
assignment to any lender(s) providing financing for the transactions contemplated by the Stock
Purchase Agreement or to any of its Affiliates, but (i) no such assignment shall relieve Xxxxxxxx,
the Company or any Subsidiary of its obligations under this Agreement and (ii) in making any such
collateral assignment to any lender(s), Xxxxxxxx shall obtain such agreements from the lender(s) as
may be necessary to ensure that the making of the payments described in Section 1(c) are not
prohibited by the agreements with such lenders under any circumstances, including in the event of a
default by Xxxxxxxx under any such agreements.
(c) Severability. If any provision of this Agreement is held to be illegal, invalid
or unenforceable under any present or future law, and if the rights or obligations of any Party
hereto under this Agreement will not be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Agreement will be construed and enforced as if such
provision had never comprised a part hereof, (iii) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by such provision or its severance
herefrom and (iv) in lieu of such provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such provision as may be
possible.
(d) Notice. Any notice required to be delivered to the Parties hereunder shall be
delivered in accordance with Section 12.11 of the Stock Purchase Agreement.
(e) Section Headings. The headings of sections in this Agreement are provided for
convenience only and will not effect its construction or interpretation.
(f) Governing Law. This Agreement will be governed by the laws of the State of New
York without regard to conflicts of laws principles.
(g) Counterparts. This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written.
| XXXXXXXX: | PLATINUM: | |||||||
| XXXXXXXX & COMPANY | PLATINUM EQUITY, LLC | |||||||
By:
|
/s/ Xxxxxx X. Xxxxxxxx | By: | /s/ Xxx X. Xxxxxxxx | |||||
Name:
|
Xxxxxx X. Xxxxxxxx | Name: | Xxx X. Xxxxxxxx | |||||
Its:
|
President and Chief Executive Officer | Its: | Executive Vice President | |||||
| General Counsel and Secretary | ||||||||
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