Amendment No. 1 to Asset Purchase Agreement (this "
Amendment "), dated as of May 4, 2009, between UBS Financial
Services Inc., a Delaware corporation (" Seller "), and
Stifel, Nicolaus & Company, Incorporated, a Missouri
corporation (" Buyer ").
RECITALS
Reference is hereby made to the Asset Purchase Agreement, dated as
of March 23, 2009, between Seller and Buyer (the " Purchase
Agreement ").
Buyer and Seller wish to amend the Purchase Agreement to provide
for the acquisition of additional branch offices of Seller and
amend certain other provisions, exhibits and schedules of the
Purchase Agreement.
AGREEMENT
The parties hereto hereby agree as follows:
1.
Addition of Business Locations .
(a) From and after the
date of this Amendment, the branch offices identified on
Appendix 1 to this Amendment (collectively, the "
Additional Branch Offices ") are hereby added as Business
Locations for purposes of the Purchase Agreement.
(b) By consequence of the
addition of the Additional Branch Offices to the list of Business
Locations, the existing Exhibit A to the Purchase Agreement
is hereby replaced with the amended Exhibit A attached as
Appendix 2 to this Amendment, effective from and
after the date of this Amendment.
(c) Buyer acknowledges
that the Asset and Liability Statement does not and will not
include assets and liabilities primarily or solely related to or
located at the Additional Branch Offices. Attached as
Appendix 3 to this Amendment is an unaudited
statement of the Assets and Assumed Liabilities primarily or solely
related to or located at the Additional Branch Offices as of
November 30, 2008, determined as if the Additional Branch Offices
were Acquired Locations to be acquired at a single Closing (the "
Additional Branch Asset and Liability Statement ").
Buyer agrees that the Asset and Liability Statement shall not be
deemed to be inaccurate, and the representations in Sections
5.3(a) and 5.3(c) of the Purchase Agreement shall not be
deemed to be breached, by virtue of the exclusion from the Asset
and Liability Statement of assets and liabilities primarily or
solely related to or located at the Additional Branch Offices, or
of notes and other exceptions related thereto. Without limiting the
preceding sentence, Seller represents and warrants to Buyer that
the representations and warranties in Section 5 of the Purchase
Agreement (other than Sections 5.3(a) and 5.3(c) ),
in each case as qualified and limited by the Disclosure Schedule
and giving effect to the addition and/or amendment of the exhibits
and schedules to the Purchase Agreement as provided pursuant to
this Amendment, remain true and correct in all material respects as
of the date of this Amendment, giving effect to the addition of the
Additional Branch Offices as provided herein.
(d) Without limiting the
second to last sentence of Section 1(c) above, the
Additional Branch Asset and Liability Statement fairly presents, in
all material respects, the Assets and Assumed Liabilities primarily
or solely related to or located at the Additional Branch Offices as
of November 30, 2008, determined as if all Additional Branch
Offices were Acquired Locations to be acquired at a single
Closing. The Additional Branch Asset and Liability Statement
has been (i) derived from the books of account and other financial
records of the Business maintained by Seller, and (ii) prepared in
accordance with relevant GAAP on a basis consistent with the
principles historically applied by Seller in the preparation of
statements of assets and liabilities related to the Business,
except as expressly disclosed in the notes to the Additional Branch
Asset and Liability Statement.
2. Amendment
of Other Exhibits and Schedules . In connection with
the addition of the Additional Branch Offices as additional
Business Locations and other matters, from and after the date of
this Amendment:
(a) The existing
Exhibit D to the Purchase Agreement is hereby replaced with
the amended Exhibit D attached as Appendix 4
to this Amendment.
(b) The existing
Exhibit E to the Purchase Agreement is hereby replaced with
the amended Exhibit E attached as Appendix 5
to this Amendment.
(c) The existing
Section 5.3(b) of the Disclosure Schedule, referred to in
the Purchase Agreement as the " Production Schedule ", is
hereby replaced with the amended Section 5.3(b) of the
Disclosure Schedule attached as Appendix 6 to this
Amendment.
(d) The existing
Section 5.8(a) of the Disclosure Schedule is hereby replaced
with the amended Section 5.8(a) of the Disclosure Schedule attached
as Appendix 7 to this Amendment.
3. Other
Amendments to the Purchase Agreement . The
following amendments to the Purchase Agreement are effective
retroactive to the execution of the Purchase Agreement:
(a) Section 1.1(a) of the
Purchase Agreement is hereby amended and restated in its entirety
to read as follows:
"(a) the leasehold and subleasehold
interests of Seller in the real property comprising the Acquired
Locations (including leasehold and subleasehold interests related
to the satellite office of a Business Location (as such satellite
offices are identified on Exhibit A ) if the relevant
Business Location is an Acquired Location), together with all
interests of Seller in the buildings, structures, installations,
fixtures, and other improvements situated thereon and all
easements, rights of way, and other rights, interests, and
appurtenances of Seller therein or thereunto pertaining
(collectively, " Leased Real Estate ");".
(b) Section 1.1(b) of the
Purchase Agreement is hereby amended and restated in its entirety
to read as follows:
"(b) all real estate lease and
sublease agreements to which Seller is a party (including lease and
sublease agreements for the satellite offices, if any, of Business
Locations which are Acquired Locations) to the extent relating
exclusively to the Leased Real Estate (collectively, " Real
Estate Leases ");".
(c) Section 1.1(h) of the
Purchase Agreement is hereby amended and restated in its entirety
to read as follows:
"(h) to the extent transferable, all
other contracts and agreements (other than Transferred Customer
Contracts, Transferred Employee Contracts and Employee Contracts
relating to Non-Transferred SOI Employee Indebtedness described in
Section 1.1(g) , Real Estate Leases, Personal Property
Leases, contracts for utilities services at the Leased Real Estate,
contracts for the telephone numbers described in Section
1.1(e) , Seller's Plans and other benefits plans, programs or
policies of Seller or its affiliates, and contracts and agreements
entered into pursuant thereto or in connection therewith) to which
Seller is a party with an unaffiliated third party, to the extent
exclusively related to the Business as conducted at the Acquired
Locations (collectively, " Branch Contracts ");".
(d) The last sentence of
Section 1.6(a) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"After the Initial Recruiting Period, Seller and Buyer shall use
their reasonable efforts to cause mutually agreed representatives
of both Seller and Buyer to meet in person or otherwise communicate
(subject to the same conditions and limitations on such
communications during the Initial Recruiting Period described above
in this Section 1.6(a) ) with all Employees employed at an
Acquired Location or Partially Acquired Location (other than
Excluded Employees at such Partially Acquired Locations) with whom
Buyer and Seller did not meet or otherwise communicate during the
Initial Recruiting Period (if any) in order to advise them of the
transactions contemplated by this Agreement, including the proposed
transfer of their employment to Buyer and the general terms of
their proposed transition, compensation and benefits. Buyer
and Seller shall use reasonable efforts to cause each such Employee
to deliver to Buyer or Seller an executed Statement of Intention
prior to the relevant Closing at which Buyer will acquire the
Branch Assets and Branch Liabilities of the Acquired Location or
Partially Acquired Location at which such Employee is employed or
located. After the Initial Recruiting Period, Buyer and
Seller shall continue to deliver to each other copies of any and
all executed Statements of Intention received by them, no less
frequently than weekly to the extent reasonably practicable."
(e) The last sentence of
Section 1.6(b) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"Notwithstanding anything to the contrary in Sections 1 ,
2 , or 3 , but subject to Section 1.6(c) , the
Assets and Assumed Liabilities shall not include any assets or
liabilities of the Business to the extent primarily or solely
related to or located at any Excluded Location, and the Employees
employed or located, and Customers whose Customer Contracts are
solely or primarily serviced by Employees employed or located, at
an Excluded Location shall not be eligible to become Transferred
Employees or Transferred Customers (except, in the case of
Customers, if and to the extent the relevant Customer is also a
Customer with accounts serviced by or credited to an Eligible
Employee primarily employed or located at a separate Acquired
Location or Partially Acquired Location)."
(f) Section 1.8 of the
Purchase Agreement is hereby amended and restated in its entirety
to read as follows:
"
1.8 Matters Relating to Non-Transferred SOI
Employees . If Seller becomes aware that any
Employee (other than an Excluded Employee) who has executed and
delivered a Statement of Intention has commenced or accepted
employment with any third party entity within the financial
services industry, or has become, or has agreed to become,
affiliated with any such entity, in either case on or before the
relevant Closing Date for Buyer's acquisition of Branch Assets and
Branch Liabilities related to the Business Location at which such
Employee was primarily employed or located (each, a "
Non-Transferred SOI Employee "), then Seller shall promptly
notify Buyer in writing upon becoming aware of such fact, but,
whether or not so notified by Seller, Buyer shall acquire, at the
relevant Closing, the Employee Contracts related to the
Non-Transferred SOI Employee Indebtedness of such Non-Transferred
SOI Employee who had been employed or located at the Acquired
Locations or Partially Acquired Locations being acquired at such
Closing, and Seller shall not seek to enforce or collect payment on
any such Employee Contract(s) evidencing such Non-Transferred SOI
Employee Indebtedness without the written consent of Buyer.
The Employee Contracts with respect to such Non-Transferred SOI
Employee Indebtedness shall be included in the Assets and Assumed
Liabilities sold by Seller and acquired by Buyer at the relevant
Closing for the Branch Assets and Branch Liabilities of the
Business Location at which such Non-Transferred SOI Employee was
primarily employed or located. For each Non-Transferred SOI
Employee at a Partially Acquired Location as to which Buyer
acquires such Non-Transferred SOI Employee Indebtedness, Buyer
shall also pay the relevant Transferred Employee Amount (as
provided in Section 3.1 ) at the relevant Closing for such
Non-Transferred SOI Employee, notwithstanding that such
Non-Transferred SOI Employee is not a Transferred
Employee."
(g) Section 2.1(b) of the
Purchase Agreement is hereby amended and restated in its entirety
to read as follows:
"(b) Subject to Section 2.3(e)
, all obligations of Seller or its affiliates arising on or after
the relevant Closing Date to make performance, milestone or
Back-End Bonus payments, or grant releases of indebtedness, to any
Transferred Employees pursuant to Transferred Employee Contracts
that are "Employee Forgivable Loans" or under the Employee
Contracts set forth in Section 3.2(b) of the Disclosure
Schedule that are Transferred Employee Contracts;".
(h) Section 2.3(e) of the
Purchase Agreement is hereby amended and restated in its entirety
to read as follows:
"(e) any payment obligations relating
to compensation, cash commissions, transition payments, cash
awards, incentive payments and bonuses that are due and payable to
Transferred Employees before the relevant Closing Date at which
they become Transferred Employees, except if and solely to the
extent included by Seller as a liability in calculating the Net
Value Amount for the relevant Closing for purposes of Section
3.2(a) or as expressly provided in Section 10 ;"
(i) Section
3.1(b)(ii)(A) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"(A)
the Base Acquisition Consideration (as re-calculated upwards as of
such Subsequent Closing Date, taking into account all Employees who
have become Transferred Employees or Non-Transferred SOI Employees
as of all prior Closing Dates), less the aggregate amount of all
Base Acquisition Consideration paid at previous Closings;
provided, however , that the Base Acquisition Consideration
payable at any Subsequent Closing Date shall never be a negative
number; plus ".
(j) The definition
of "Base Acquisition Consideration" in Section 3.1(c) of the
Purchase Agreement is hereby amended and restated in its entirety
to read as follows:
" " Base Acquisition
Consideration " means: (i) $21,500,000, if Employees of
Seller who are responsible, in the aggregate, for more than 70% of
the total production of the Business Locations listed on
Exhibit D hereto (as determined based upon the
Production Schedule) have become Transferred Employees or
Non-Transferred SOI Employees as of the relevant Closing Date and
all prior Closing Dates (if any) combined; (ii) $16,125,000, if
Employees of Seller who are responsible, in the aggregate, for more
than 50% and not more than 70% of the total production of the
Business Locations listed on Exhibit D hereto (as
determined based upon the Production Schedule) have become
Transferred Employees or Non-Transferred SOI Employees as of the
relevant Closing Date and all prior Closing Dates (if any)
combined; (iii) $10,750,000, if Employees of Seller who are
responsible, in the aggregate, for more than 25% and not more than
50% of the total production of the Business Locations listed on
Exhibit D hereto (as determined based upon the
Production Schedule) have become Transferred Employees or
Non-Transferred SOI Employees as of the rele
