AMENDMENT TO STOCK PURCHASE
AGREEMENT
This Amendment
(this “ Amendment ”) is made and entered into as
of December 15, 2005, by and among OPEN SOLUTIONS INC.
, a Delaware corporation (the “Purchaser Parent”
), HUSKY ACQUISITION CORPORATION , a Delaware corporation
and a wholly-owned subsidiary of the Purchaser Parent (the
“Purchaser” ), THE BISYS GROUP, INC. , a
Delaware corporation (the “Seller Parent” ), and
BISYS INC. , a Delaware corporation and a wholly-owned
subsidiary of the Seller Parent (the “Seller”
).
WHEREAS, the
Purchaser Parent, the Purchaser, the Seller Parent and the Seller
entered into that certain Stock Purchase Agreement (the
“Purchase Agreement” ), made and entered as of
September 15, 2005;
WHEREAS, the
Seller Parent has informed the Purchaser Parent and the Purchaser
that it may not be able to fulfill the condition to Closing set
forth in Section 7.03(i) of the Purchase Agreement on
or prior to the Drop Dead Date;
WHEREAS, the
parties desire to amend, among other things, the definition of
“Drop Dead Date” in Section 1.01 of the
Purchase Agreement as set forth below and to amend Sections
5.17(b) , 9.01(b) and 9.01(c) of the Purchase
Agreement as set forth below;
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
All capitalized
terms used but not elsewhere defined herein shall have the meanings
ascribed to such terms in the Purchase Agreement.
2.
Amendment to Section 1.01 of the Purchase
Agreement
The definition of
Drop Dead Date in Section 1.01 of the Purchase
Agreement is amended and replaced in its entirety by the
following:
“
“Drop Dead Date” means February 28,
2006.”
3.
Amendment to Section 5.17(b) of the Purchase
Agreement
(a)
Section 5.17(b) of the Purchase Agreement is amended
and replaced in its entirety by the following:
“No later
than thirty (30) Business Days after the Closing, the
Purchaser will file with the Secretary of State of the State of
Delaware a document causing the change of the corporate name of the
Company to “OPEN SOLUTIONS BIS, INC.””
(b) For the
avoidance of doubt, Seller Parent, Seller and their respective
Affiliates hereby agree that the use of the word “BIS”
in “OPEN SOLUTIONS BIS, INC.” (the “Company
Name” ) pursuant to Section 5.17(b) of the Purchase
Agreement shall not be subject to any limitation or right of Seller
Parent, Seller or their respective Affiliates or create any
additional obligation on the part of the Purchaser, including,
without limitation, under Section 5.17(c) of the Purchase
Agreement.
(c) Seller
Parent, Seller and their respective Affiliates (i) agree that
they shall not, directly or indirectly, challenge the ownership or
validity of the Company Name or any registration or application for
registration thereof by the Purchaser and (ii) covenant not to
sue and release any and all claims they may have against the
Purchaser based upon the Purchaser’s use of the Company Name,
until and following the Closing Date in perpetuity.
4.
Amendment to Section 9.01(b) of the Purchase
Agreement
Section 9.01(b) of the Purchase Agreement is amended
and replaced in its entirety by the following:
“by the
Seller, if all of the conditions set forth in
Section 7.01 and Section 7.03 shall have been
complied with and performed (except for any such conditions set
forth in Section 7.01 or Section 7.03 as
shall not have been complied with or performed as a result of any
fault of the Purchaser Parent or the Purchaser) and one or more of
the conditions set forth in Section 7.02 shall not have
been complied with or performed in any material respect and such
noncompliance or nonperformance shall not have been cured or
eliminated (or by its nature cannot be cured or eliminated) by the
Purchaser Parent or the Purchaser on or before the Drop Dead Date,
subject to the Seller’s right to extend the Drop Dead Date
for a period of up to the earlier of (x) thirty (30) days
or (y) the expiration of the Wachovia
Commitment;”
5.
Amendment to Section 9.01(c) of the Purchase
Agreement
Section 9.01(c) of the Purchase Agreement is amended
and replaced in its entirety by the following:
“by the
Purchaser, if all of the conditions set forth in
Section 7.01 and Section 7.02 shall have been
complied with and performed (except for any such conditions set
forth in Section 7.01 or Section 7.02 as
shall not have been complied with or performed as a result of any
fault of the Seller Parent or the Seller) and one or more of the
conditions set forth in Section 7.03 shall not have
been complied with or performed in any material respect and such
noncompliance or nonperformance shall not have been cured or
eliminated (or by its nature cannot be cured or eliminated) by the
Seller Parent or the Seller on or before the Drop Dead Date,
subject to the Purchaser’s right to extend the Drop
Dea
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