JOINDER & AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
JOINDER & AMENDMENT NO. 1 TO STOCK
PURCHASE AGREEMENT
This JOINDER & AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT (this “Amendment”), made and entered into as of February
26, 2010, by and among AMERICAN CAPITAL ACQUISITION
CORPORATION, a Delaware
corporation (the
“Company”), XXXXXXX XXXXXXXXX (“Xxxxxxxxx”), THE XXXXXXX XXXXXXXXX 2005
GRANTOR RETAINED ANNUITY TRUST (“MKG”) and AMTRUST FINANCIAL SERVICES, INC., a
Delaware corporation (“AFSI”, and together with Xxxxxxxxx and MKG, each a
“Purchaser” and together the “Purchasers”), amends that certain Stock Purchase Agreement, dated as of October
16, 2009, by and among the
Company MKG and AFSI (the
“Agreement”).
WHEREAS,
the Company MKG, AFSI and Xxxxxxxxx desire that Xxxxxxxxx should become a party
to the Agreement as a “Purchaser” (as defined in the Agreement);
and
WHEREAS,
the Company and the Purchasers desire to provide for the amendment of certain
terms and provisions of the Agreement;
NOW, THEREFORE, in consideration of the
foregoing and the representations, warranties, covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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1.
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Capitalized
Terms. Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed to
them in the Agreement.
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2.
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Joinder. By
its execution and delivery of this Amendment, Xxxxxxxxx hereby joins in
and agrees to be bound by the terms and conditions of the Agreement as a
“Purchaser” under and as defined in the
Agreement.
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3.
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Amendment to Section
1.1(b). In Section 1.1(b) of the Agreement the word
“MKG” shall be deleted and replace with the words “MKG and
Xxxxxxxxx”.
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4.
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Business
Plan and Budget. Section 6.20
of the Agreement shall be amended in its entirety to read as
follows:
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“Business Plan and
Budget. Attached hereto as Exhibit F is the Company’s
preliminary three (3) year budget and business plan. The Company
agrees that it shall use best efforts to prepare and deliver to the Purchasers,
on or before the 90th day
following the Initial Closing, a more detailed and thorough three (3) year
budget and business plan with respect to the Company that is reasonably
acceptable to the Purchasers.
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5.
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Amendments to Section
6.8. In Section 6.8 of the Agreement the word “MKG”
shall be deleted and replace with the words “MKG,
Xxxxxxxxx”. In addition, subsection (iii) in Section 6.8 shall
be deleted and replace with “(iii) the expense, including due diligence
expense, incurred by MKG, Xxxxxxxxx and AFSI in relation to the
negotiation and consummation of the transactions contemplated by the
Acquisition Agreement.
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6.
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Exhibits. The
Agreement shall be amended such that (i) Exhibit A to the Agreement shall
be deleted in its entirety and replaced with Exhibit A to this Agreement,
(ii) Exhibit B to this Amendment shall added to the Agreement as Exhibit F
thereto and (iii) Exhibit B to the Agreement shall be deleted in its
entirety and replaced by Exhibit C
hereto.
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7.
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Governing
Law. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of Delaware, without
giving effect to the principles of conflicts of law
thereof.
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8.
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Counterparts. This
Amendment may be executed in two or more counterparts, each of which shall
be deemed an original and all of which together with the Agreement shall
be considered one and the same
agreement.
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9.
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No Other
Amendments. This Amendment is the sole amendment to the
Agreement. Except for the amendments to the Agreement provided
for herein, the Agreement shall remain unchanged and in full force and
effect.
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10.
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Captions. The Section headings
in this Amendment are inserted for convenience of reference only, and
shall not affect the interpretation of this
Amendment.
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[Remainder
of page intentionally left blank]
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IN
WITNESS WHEREOF, intending to be legally bound, the parties hereto have executed
this Amendment as of the date first above written.
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COMPANY:
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AMERICAN
CAPITAL ACQUISITION
CORPORATION
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By:
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/S/ XXXXX XXXXXXXXX
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Name: Xxxxx
Xxxxxxxxx
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Title: President
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PURCHASERS:
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THE
XXXXXXX XXXXXXXXX 2005
GRANTOR
RETAINED ANNUITY
TRUST
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By:
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/S/ XXXXXXX XXXXXXXXX
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Name: Xxxxxxx
Xxxxxxxxx
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Title: Trustee
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AMTRUST
FINANCIAL SERVICES,
INC.
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By:
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/S/ XXXXX XXXXXXX
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Name: Xxxxx
Xxxxxxx
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Title: Chief
Executive Officer
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/S/ XXXXXXX XXXXXXXXX
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Xxxxxxx
Xxxxxxxxx
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AMENDMENT
NO. 1 TO ACAC SPA
EXHIBIT
A
EXHIBIT A
TO THE AGREEMENT
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PURCHASER
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COMMITMENT
PERCENTAGE
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ADDRESS
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The
Xxxxxxx Xxxxxxxxx 2005 Grantor Retained Annuity Trust
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54.27 | % |
Xxxxxxx
Xxxxxxxxx, Trustee
Xxxxxxx
Xxxxxxxxx 2005 G.R.A.T.
00
Xxxxxx Xxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
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Xxxxxxx
Xxxxxxxxx
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20.73 | % |
Xxxxxxx
Xxxxxxxxx
00
Xxxxxx Xxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
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| 25.00 | % |
00
Xxxxxx Xxxx
0xx
Xxxxx
Xxx
Xxxx, XX 00000
Phone:
000.000.0000
Fax:
000.000.0000
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SHARES
PURCHASED
(Last
Updated: ____, 2009)
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PURCHASER
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INITIAL CLOSING
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SUBSEQUENT
CLOSINGS
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The
Xxxxxxx Xxxxxxxxx 2005 Grantor Retained Annuity Trust
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Date: February
26, 2010
Number
of Shares of Common Stock: 115,161.81
Aggregate
Purchase Price: $115,161,812
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1)
[insert
date]
Number
of Shares of Common Stock:_____
Aggregate
Purchase Price:____
2)
[insert
date]
Number
of Shares of Common Stock:_____
Aggregate
Purchase Price:____
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Xxxxxxx
Xxxxxxxxx
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Date: February
26, 2010
Number
of Shares of Common Stock: 43,999.17
Aggregate
Purchase Price: $43,999,169
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1)
[insert
date]
Number
of Shares of Common Stock:_____
Aggregate
Purchase Price:____
2)
[insert
date]
Number
of Shares of Common Stock:_____
Aggregate
Purchase Price:____
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Date: February
26, 2010
Number
of Shares of Preferred Stock: 53,053.66
Aggregate
Purchase Price: $53,053,660
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1)
[insert
date]
Number
of Shares of Preferred Stock:_____
Aggregate
Purchase Price:____
2)
[insert
date]
Number
of Shares of Preferred Stock:_____
Aggregate
Purchase
Price:____
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EXHIBIT
B
EXHIBIT F
TO THE AGREEMENT
[SEE
ATTACHED]
EXHIBIT
C
EXHIBIT B
TO THE AGREEMENT
[SEE
ATTACHED]
