Exhibit 2.3
AMENDMENT TO STOCK PURCHASE AGREEMENT
This Amendment to Stock Purchase Agreement (this "Amendment") is made
and entered into this 31st day of July, 2006, by and among BMS Holdings, Inc., a
Delaware corporation ("Holdings"), BMS Intermediate, Inc., a Delaware
corporation ("Intermediate"), Bankruptcy Management Solutions, Inc., a Delaware
corporation ("BMS"), Bankruptcy Management Solutions, LLC, a Delaware limited
liability company ("Seller Representative") and the stockholders of BMS
identified on the signature pages hereto as Participating Sellers (each, a
"Participating Seller" and collectively, the "Participating Sellers").
WHEREAS, Holdings, BMS, Seller Representative, the Participating
Sellers and the other stockholders and the warrant holder of BMS entered into
that certain Stock Purchase Agreement, dated as of May 23, 2006 (the
"Agreement"), pursuant to the terms of which the Stockholders agreed to sell and
Holdings agreed to buy all of the outstanding capital stock of BMS (capitalized
terms used herein but not defined shall have the meanings ascribed to such terms
in the Agreement);
WHEREAS, Section 7.07 of the Agreement permits the amendment of the
Agreement and the assignment of the Agreement by Holdings to effect a
contribution of Shares by certain Stockholders to Holdings prior to or at the
Closing in a tax-efficient manner;
WHEREAS, Holdings desires to assign all of its rights, interests and
obligations under the Agreement to Intermediate, and Intermediate is a
wholly-owned subsidiary of Holdings;
WHEREAS, in lieu of a portion of the cash payment payable to each
Participating Seller under Section 2.03(b) of the Agreement, each Participating
Seller desires to contribute to Holdings certain of such Participating Seller's
shares of Class B Common Stock, par value $0.01 per share, of BMS immediately
prior to the Closing in exchange for shares of Class A Common Stock, par value
$0.01 per share, of Holdings, in each case as provided in that certain
Stockholders Agreement, dated as of the date hereof, by and among Holdings and
the stockholders of Holdings parties thereto; and
WHEREAS, the parties desire to amend the Agreement to reflect the
contribution of Shares by the Participating Sellers to Holdings and the
resulting reduction in the cash payable to the Participating Sellers at the
Closing.
NOW, THEREFORE, for and in consideration of the premises, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
A G R E E M E N T S:
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1. All terms which are defined in the Agreement shall have the same
meanings when used herein, unless specifically provided herein to the
contrary.
2. Holdings and Intermediate hereby represent that Intermediate is a
wholly-owned subsidiary of Holdings. Pursuant to Section 7.07 of the
Agreement, Holdings hereby assigns all of its rights, interests and
obligations hereunder and under the Agreement to Intermediate;
provided, however, that the foregoing assignment shall not in any way
relieve Holdings of any its obligations hereunder and under the
Agreement.
3. Section 1.01 of the Agreement is hereby amended by inserting the
following definitions in the appropriate place therein:
"Aggregate Rollover Amount" means the sum of the Rollover
Amounts of each of the Participating Sellers as set forth on Schedule
IV attached hereto.
"Holdings" means BMS Holdings, Inc., a Delaware corporation
and parent of Buyer.
"Rollover Amount" for any Participating Seller, shall be the
dollar amount set forth opposite such Participating Seller's name on
Schedule IV attached hereto.
4. The parties hereto acknowledge and agree that (i) "Participating
Sellers," as such term is used herein and in the Agreement, shall mean
those Stockholders listed on Schedule IV attached hereto and (ii)
"Buyer," as such term is used herein and in the Agreement, shall
hereafter mean Intermediate.
5. Section 2.03(a) of the Agreement is hereby amended by deleting it in
its entirety and replacing it with the following:
(a) Upon the terms and subject to the conditions set
forth in this Agreement, Buyer shall pay to Sellers, in consideration
for the Shares and the cancellation of any outstanding Warrants, the
aggregate purchase price equal to (i) $384,500,000 (Three Hundred and
Eighty Four Million and Five Hundred Thousand) (the "Base Purchase
Price"), subject to the adjustments set forth herein, less (ii) the
Aggregate Rollover Amount. Adjustments to the consideration paid to
Sellers hereunder shall be estimated prior to the Closing pursuant to
Section 2.04 and adjusted after the Closing pursuant to Section 2.05.
6. Section 2.03(b) of the Agreement is hereby amended by deleting it in
its entirety and replacing it with the following:
(b) At the Closing, each Seller holding any Shares shall
receive payment by Buyer in cash equal to such Seller's Pro Rata
Portion of the Estimated Adjusted Purchase Price (less (i) any amounts
reduced pursuant to any agreement among the Sellers and (ii) if such
Seller is a Participating Seller, the Rollover Amount for such Seller).
Payment for such Seller's Shares shall be made by wire transfer of
immediately available funds to an account or accounts specified by
Seller Representative in writing at least two (2) Business Days prior
to the Closing.
7. Section 2.03(d) of the Agreement is hereby amended by deleting it in
its entirety and replacing it with the following:
(d) For the avoidance of doubt, the aggregate amount of
cash payments to be made by Buyer pursuant to Sections 2.03(b) and
2.03(c) shall equal (i) the Estimated Adjusted Purchase Price minus
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(ii) the Aggregate Rollover Amount. Each Seller hereby authorizes Buyer
to pay the aggregate Estimated Adjusted Purchase Price (less the
Aggregate Rollover Amount) to Sellers in accordance with Sections
2.03(b) and 2.03(c) and agrees that, following such payment in full,
Buyer shall have no liability to any Seller in respect of the
allocation of the Estimated Adjusted Purchase Price (less the Aggregate
Rollover Amount) among Sellers made by Seller Representative pursuant
to Sections 2.03(b) and 2.03(c).
8. Section 3.02(a) of the Agreement is hereby amended by deleting it in
its entirety and replacing it with the following:
(a) Receipt by the Sellers of the Estimated Adjusted
Purchase Price (less the Aggregate Rollover Amount) pursuant to Section
2.03;
9. Section 7.07 of the Agreement is hereby amended by deleting any
references to "Buyer" in such Section 7.07 and replacing such
references with "Holdings".
10. Section 9.04 of the Agreement is hereby amended by deleting the
introductory language thereto in its entirety and replacing it with the
following:
Notwithstanding anything to the contrary contained in this
Agreement, the obligations of the Sellers, LEF II or Buyer under
Section 9.02 or Section 9.03, as applicable, shall be subject to the
following limitations:
11. The Agreement is hereby amended by adding Schedule IV attached hereto.
Subject to the last sentence of this Section 11, the Participating
Sellers acknowledge and agree that the Rollover Amounts of the
Participating Sellers in Schedule IV are strictly confidential and, as
such, Schedule IV will be held on their behalf by Holdings,
Intermediate and the Seller Representative. Each of the Participating
Sellers will receive a copy of Schedule IV including only his or her
Rollover Amount and shall acknowledge in writing thereon that the
Rollover Amount for such Participating Seller on Schedule IV is true
and correct. The Seller Representative agrees to not disclose any
Participating Seller's Rollover Amount to any other Participating
Seller without the prior written consent of Holdings; provided, that,
the Seller Representative shall (i) not have any liability for any
non-intentional breach of this Section 11 and (ii) be permitted to
disclose any Participating Seller's Rollover Amount and Schedule IV in
connection with enforcement of its rights under this Amendment and the
Agreement, to its accountants and counsel and to any investor or
potential investor in any fund sponsored by any Affiliate of the Seller
Representative.
12. Exhibit E to the Agreement is hereby amended by adding the attached
Form Trustee Agreement at the end of such Exhibit E.
13. This Amendment may be executed in separate counterparts, each of which
shall be an original and all of which when taken together shall
constitute one and the same instrument. Further, this Amendment may be
executed by the parties hereto by facsimile signature, such that
execution of this Amendment by facsimile signature shall be deemed
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effective for all purposes as though this Amendment was executed as a
"blue ink" original.
14. All matters relating to the interpretation, construction, validity and
enforcement of this Amendment shall be governed by and construed in
accordance with the domestic laws of the State of New York without
giving effect to any choice or conflict of law provision or rule
(whether of the State of New York or any other jurisdiction) that would
cause the application of laws of any jurisdiction other than the State
of New York.
15. Except as amended hereby, the Agreement shall be and remain in full
force and effect and is hereby ratified and confirmed by the parties
hereto. To the extent any of the terms and provisions of the Agreement
are inconsistent with the terms and provisions of this Amendment, the
terms and provisions of this Amendment shall govern and control.
16. Neither this Amendment nor any provision hereof may be waived,
modified, amended, discharged or terminated except by an instrument in
writing signed by the party against which the enforcement of such
waiver, modification, amendment, discharge or termination is sought,
and then only to the extent set forth in such instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date set forth above.
HOLDINGS:
BMS HOLDINGS, INC.
By:
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Name:
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Title:
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INTERMEDIATE:
BMS INTERMEDIATE, INC.
By:
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Name:
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Title:
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Signature Page to Amendment to Stock Purchase Agreement
BMS:
BANKRUPTCY MANAGEMENT SOLUTIONS, INC.
By:
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Name:
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Title:
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SELLER REPRESENTATIVE
BANKRUPTCY MANAGEMENT SOLUTIONS, LLC
By:
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Name:
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Title:
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Signature Page to Amendment to Stock Purchase Agreement
PARTICIPATING SELLERS:
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Jozsef Jasz
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Signature Page to Amendment to Stock Purchase Agreement
PARTICIPATING SELLERS (CONT'D):
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Signature Page to Amendment to Stock Purchase Agreement
SCHEDULE IV
PARTICIPATING SELLERS
[Schedule Omitted pursuant to Item 6.01 of Regulation S-K. The company
agrees to furnish supplementally a copy of any omitted schedule to the
Commission upon request.