BUTLER AMERICA LLC Santa Barbara, California 93105 July 7, 2009
Exhibit
2.5
XXXXXX
AMERICA LLC
0000
Xxxxx Xxxxxx
Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
July 7,
2009
Xxxxxx
International, Inc.
000 Xxxx
Xxx Xxxx Xxxxxxxxx
Xxxxx
0000
Ft.
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx
Xxxxxxxx
Ladies
and Gentlemen:
Reference
is made to that certain Asset Purchase Agreement, dated as of May 29, 2009 (as
amended, the “Asset
Purchase Agreement”), entered into by and among Xxxxxx International,
Inc., a Maryland corporation (“Xxxxxx”), the other
sellers signatory thereto (together with Xxxxxx, the “Sellers”) and Xxxxxx
America LLC, a Delaware limited liability company (“Buyer”), pursuant to
which Buyer will purchase substantially all of the assets of Sellers (the “Asset
Purchase”). Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Asset Purchase
Agreement. Buyer and Sellers hereby acknowledge and agree as
follows:
1. Notwithstanding
Section 2.1.1 of the Asset Purchase Agreement (which the parties agree that such
section is hereby superseded by paragraph 1 of this letter agreement), the
consideration to be paid by Buyer to Sellers for the Purchased Assets (as
defined in the Asset Purchase Agreement) shall be equal to $26,235,815.96 (the
“Purchase
Price”) in cash, which amount is net of $1,181,000.00, the total actual
out-of-pocket costs of employing the employees of Sellers for the week beginning
June 29, 2009 up and through July 1, 2009, including, but not limited to, such
employees’ compensation, employment taxes (including, but not limited to, social
security, unemployment and income tax), employee benefits (including vacation,
severance and holiday pay), workers compensation, and approved travel and
business expense costs as well as any benefits, statutory or otherwise, earned,
incurred or accrued by such employees (collectively, the “Employee
Costs”), which
Employee Costs for the week beginning June 29, 2009 will be paid by Buyer on the
next regular payroll date or as promptly as practicable
thereafter. Buyer shall be responsible for all Employee Costs for the
period beginning July 2, 2009 through July 6, 2009, but only to the extent
necessary to fund payroll to Sellers’ employees for this period; provided,
however, notwithstanding the foregoing, with respect to the period from and
after July 6, 2009, Buyer shall only be responsible for employee liabilities and
obligations relating to Transferred Employees and shall have no obligation or
responsibility for any liabilities or obligations relating to employees of
Sellers who do not become Transferred Employees. In accordance with
Section 2.1.2 of the Asset Purchase Agreement, on the date hereof, Buyer shall
(i) cause the Escrow Holder to deliver the Cash Deposit to Sellers in accordance
with the terms of the Escrow Agreement, and (ii) pay and deliver, in Good Funds,
the balance of the Purchase Price to Sellers. Sellers hereby certify
that, as of the date hereof, the actual debtor-in-possession loan balance
payable to General Electric Capital Corporation by Sellers is equal to
$26,235,815.96.
2. Notwithstanding
anything to the contrary contained in the Asset Purchase Agreement, the
“Closing” shall be deemed to have occurred at 12:00:01 a.m. Eastern Standard
Time on July 6, 2009 (the “Effective
Time”). All references in the Asset Purchase Agreement and in
all documents required to be executed and delivered in connection therewith
(including the General Assignment, Xxxx of Sale, Undertaking, Assignment of
Intangible Property and Domain Name Assignment) to the “Closing” or the “Closing
Date” shall be deemed to refer to a Closing at the Effective Time, except for
such references in Sections 2.1.2, 3.3 and 3.4 of the Asset Purchase Agreement,
which shall be deemed to refer to the date hereof.
3. Effective
as of 12:00:01 a.m. Eastern Standard Time on the date hereof, Buyer shall
succeed to and take ownership of all of the Sellers’ rights, title and interests
in and to (i) Sellers’ lockboxes, lockbox accounts and blocked accounts with
Bank of America, N.A., and (ii) any and all deposits in and made to any such
lockboxes, lockbox accounts and blocked accounts with Bank of America, N.A,
including, without limitation, the $55,646.20 contained in Sellers’ blocked
account.
4. Notwithstanding
anything to the contrary contained in the Schedule of Assumed Contracts
delivered to Sellers by Buyer on June 25, 2009, pursuant to Section 1.3.3 of the
Asset Purchase Agreement, the Schedule of Assumed Contracts shall be amended to
eliminate the following Contract, which will not be assumed by Buyer at Closing
and therefore will not represent an Assumed Contract:
Strategic
Alliance Agreement dated October 13, 2008, by and among Mid-Atlantic Technology,
Research & Innovation Center, Inc., Mid-Atlantic Commercial Research, LLC,
Mid-Atlantic Technical Engineering, LLC, Mid-Atlantic Technical Consulting, LLC
and Xxxxxx Services, Inc.
5. Sellers
hereby waive compliance by Buyer of its obligations contained in Section 8(a) of
the Asset Purchase Agreement, solely with respect to Buyer’s obligation to
deliver to Sellers 48 hours prior to Closing a written notice of the employees
of Sellers (not including employees of Sellers whose services are billed to
third parties) to whom offers of employment will be made by Buyer (the “Offer Notice”), and
Buyer shall be deemed to have satisfied such obligations to provide the Offer
Notice to Sellers through its delivery on July 1, 2009 of the Offer
Notice.
6. Sellers
hereby agree, at the sole cost and expense of Sellers, to execute and deliver
all papers, instruments of sale, transfer, conveyance, confirmation, assignment
or otherwise, and to perform any other acts necessary or appropriate under
applicable laws or otherwise, including making any filings or completing any
registrations with any Person, in order to vest or effectively transfer, convey,
assign or confirm all of Buyer’s rights, title and interest in and to the
certificate representing equity interests in Xxxxxx Technical Services India
Private Limited, a private limited organized under the laws of
India.
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7. Notwithstanding
anything to the contrary contained in Section 1.3.3 of the Asset Purchase
Agreement, Buyer shall pay, no later than five (5) business days following the
Closing Date, any Undisputed Cure Costs associated with the assumption of the
Assumed Contracts.
Except as
specifically amended hereby, the terms and provisions of the Asset Purchase
Agreement shall continue and remain in full force and effect and the valid and
binding obligation of the parties thereto in accordance with its
terms. All references in the Asset Purchase Agreement (and in any
other agreements, documents and instruments entered into in connection
therewith) to the “Asset Purchase Agreement” shall be deemed for all purposes to
refer to the Asset Purchase Agreement, as amended by this letter
agreement.
This
letter agreement shall be governed by, and construed in accordance with, the
laws of Delaware, without reference to choice of law principles, including
matters of construction, validity and performance. This letter
agreement may be executed in one or more counterparts, which may be delivered by
facsimile or scanned electronic copy in pdf format, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
This
letter agreement (together with the Asset Purchase Agreement), contains the
entire understanding of the parties hereto and thereto with respect to the
subject matter contained herein and therein, and supersede and cancel all prior
agreements, negotiations, correspondence, undertakings and communications of the
parties, oral or written, respecting such subject matter.
[SIGNATURE
PAGE FOLLOWS]
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If the
above is acceptable to Sellers, please so indicate by signing below and
returning a signed copy to the undersigned.
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Very
truly yours,
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XXXXXX
AMERICA LLC
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By: /s/ Xxxx X.
Xxxxxxxx
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Name: Xxxx X.
Xxxxxxxx
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Title: Chief Financial
Officer and Treasurer
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The above
understandings are hereby agreed to:
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SELLERS:
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XXXXXX
INTERNATIONAL, INC.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX
SERVICES INTERNATIONAL, INC.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX
SERVICE GROUP, INC.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX
OF NEW JERSEY REALTY CORP.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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[SIGNATURE
PAGE TO THE SIDE LETTER – PURCHASE PRICE]
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XXXXXX
TELECOM, INC.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX
UTILITY SERVICE, INC.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX
SERVICES, INC.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX
RESOURCES, LLC
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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[SIGNATURE
PAGE TO THE SIDE LETTER – PURCHASE PRICE]
