AMENDMENT NO. 1 TO THE FORECLOSURE AND ASSET PURCHASE AGREEMENT
Exhibit
2.2
EXECUTION
COPY
AMENDMENT
NO. 1 TO THE
Amendment
No. 1, dated as of December 7, 2010, (this “Amendment”), to the
Foreclosure and Asset Purchase Agreement, dated as of November 12, 2010 ( the
“Original Purchase
Agreement”, and as amended by this Amendment or otherwise, this “Agreement”) by and
among Integrated Consulting Group, Inc., a Delaware corporation (“Buyer”), North Mill
Capital, LLC., a Delaware limited liability company (“Lender”), Integrated
Consulting Group of NY LLC, a New York limited liability company (“Borrower”), The
▇▇▇▇▇▇ Agency Inc., a New York corporation (“TAI”), The ▇▇▇▇▇▇
Agency of New Jersey, Inc., a New Jersey corporation (“TANJ”), ▇▇▇▇▇▇
Specialty Services Inc., a New York corporation (“TSS”), Segue Search
of New Jersey Inc., a New York corporation (“Segue” and
collectively with TAI, TANJ and TSS, the “Members”) and ▇▇▇▇
▇▇▇▇▇▇▇▇▇, a resident of the State of New York (“▇▇. ▇▇▇▇▇▇▇▇▇” and
collectively with the Members and Borrower, the “Borrower
Parties”). Capitalized terms used herein and not otherwise
defined shall have the respective meanings assigned to them by the Original
Purchase Agreement.
Recital
WHEREAS,
each of the Parties and Lender desires to amend the Original Purchase Agreement
as more particularly described herein.
NOW
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties and Lender hereby agree as follows:
1. Section
2.3(c) of the Original Purchase Agreement is hereby amended by deleting such
Section in its entirety and substituting the following in its
place:
“(c) accounts
payable of Borrower to the third parties unaffiliated with the Borrower Parties
arising before the Closing and existing on the Closing Date (the “Borrower AP
Payments”), which shall include unpaid legal fees of the Borrower as of
the Closing Date which have been approved by Borrower; provided, that
Borrower shall have submitted in writing a list of all such third parties and
the amount to be paid to them at least one Business Day prior to the Closing
Date, and provided further, that Buyer
shall not be responsible for any payment of Borrower’s accounts payable in
excess of $380,000 in the aggregate;”
2. Section
2.3 of the Original Purchase Agreement is hereby amended by adding the following
clause (f) to such Section:
“(f) to
the extent not already paid by the Borrower,
the
liabilities and obligations of Borrower outstanding on the Closing Date with
respect to Borrower's failure to pay payroll taxes and related payroll
withholdings and contributions to the appropriate taxing authorities accruing
with respect to services rendered during the period commencing with the week
ending October 24, 2010 (for which payroll was distributed on October 29, 2010
and for which payroll taxes and related payroll withholdings and contributions
were due November 2, 2010) and ending the Closing Date, together with all
penalties, interest and fees that have accrued thereon (collectively, the “Unpaid Payroll
Tax”).”
3. Section
2.6(c) of the Original Purchase Agreement is hereby amended by adding the
following sub-clause (vii) to such Section:
“(vii) to
the appropriate taxing authorities, the Unpaid Payroll Tax.”
4. Section
9.2 of the Original Purchase Agreement is hereby amended by adding the following
clause (w) to such Section:
“(w) Buyer
shall have received a schedule (the “Payroll Tax
Schedule”), one Business Day prior to Closing, setting forth as of the
Closing Date the amount of Unpaid Payroll Tax and the name of the appropriate
taxing authority to whom such amounts are owed.”
5. Section
9.4 of the Original Purchase Agreement is hereby amended by adding the following
clause (f) to such Section:
“(f) If
Buyer has timely received the Payroll Tax Schedule from Borrower, then Buyer
shall have paid to the taxing authorities set forth thereon by wire transfer of
immediately available funds the appropriate amount of Unpaid Payroll Tax to each
such taxing authority.”
6. Section
10.1(b) of the Original Purchase Agreement is hereby amended by deleting such
Section in its entirety and substituting the following in its
place:
“(b) by
Lender or Buyer, if the Closing shall not have become effective on or before
December 13, 2010 (the “Outside Date”); provided, however, that the
right to terminate this Agreement under this Section 10.1(b) shall not be
available to any Party or Lender, as applicable, whose failure to fulfill any
obligation under this Agreement has been the cause of, or resulted in, the
failure of the Transactions to be consummated on or before the Outside
Date;”
7. Section
11.1(a) of the Original Purchase Agreement is hereby amended by deleting such
Section in its entirety and substituting the following in its
place:
“(a) At
10:00 a.m. local time on December 10, 2010 (the “Auction Date”), a
public auction of the Purchased Assets (the “Auction”) shall occur
at the office of Lender’s counsel, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇;”
8. Section
11.2 of the Original Purchase Agreement is hereby amended by deleting such
Section in its entirety and substituting the following in its
place:
“Section 11.2 Payment
of Breakup Fee
Fifty
thousand dollars ($50,000) (the “Breakup Fee”) shall
be immediately released from escrow and paid to Buyer upon the occurrence of (a)
the consummation of a sale of the Purchased Assets to any third party pursuant
to a definitive agreement with such third party that requires the delivery of
the Breakup Fee into escrow upon the execution thereof, or (b) the termination
of any definitive agreement with a third party that contemplates the sale of the
Purchased Assets provided that such definitive agreement requires that such
third party deliver the Breakup Fee into escrow upon the execution thereof and
directs the release thereof to Buyer upon the termination of such definitive
agreement, if either of the events described in clauses (a) or (b) occurs within
ninety (90) days of the Execution Date, and this Agreement had been terminated
by (i) Lender pursuant to Section 10.1(b), or
(ii) Lender or Buyer pursuant to Section
10.1(g). The Parties and Lender agree that the Breakup Fee
shall be the full and liquidated damages of Buyer arising out of any such
termination of this Agreement. The provisions of this Section 11.2 shall
survive any termination of this Agreement pursuant to Sections 10.1(b), if
terminated by Lender pursuant to such Section, or 10.1(g).”
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9. Article
XIII of the Original Purchase Agreement is hereby amended by inserting the
following defined terms in alphabetical order with the existing defined terms in
such Article:
““Auction Date” shall
have the meaning ascribed to it in Section
11.1(a).”
““Payroll Tax Schedule”
shall have the meaning ascribed to it in Section
9.2(w).”
““Unpaid Payroll Tax”
shall have the meaning ascribed to it in Section
2.3(f).”
10. Except
as expressly amended hereby, the Original Purchase Agreement shall continue in
full force and effect in accordance with the terms hereof.
11. This
Amendment shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to any choice of law or conflict of law
provision or rule that would cause application of the laws of any jurisdiction
other than the State of New York.
[SIGNATURE
PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of
the Parties hereto and Lender has caused this Amendment to be duly executed as
of the date first written above.
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NORTH
MILL CAPITAL, LLC
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By:
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/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Title:
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Senior
Vice President
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INTEGRATED
CONSULTING GROUP OF NY LLC
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By:
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/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Title:
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President
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▇▇▇▇▇▇
AGENCY OF NEW JERSEY, INC.
THE
▇▇▇▇▇▇ AGENCY INC.
▇▇▇▇▇▇
SPECIALTY SERVICES INC.
SEGUE
SEARCH OF NEW JERSEY
INC.
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By:
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/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Title:
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President
of each of the
foregoing
entities
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/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
individually
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[Signature
Page to Amendment No. 1 to FAPA]
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INTEGRATED
CONSULTING GROUP, INC.
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By:
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/s/ ▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Name:
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▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Title:
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Chief
Executive Officer
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[Signature
Page to Amendment No. 1 to FAPA]