FIRST AMENDMENT TO MERGER AGREEMENT
FIRST
AMENDMENT TO MERGER AGREEMENT
This
First Amendment to Merger Agreement (“Amendment”) is dated December 18, 2009 by
and among Xxxxx Capital Corporation, a Nevada corporation (“GCC”), on the one
hand; and the GCC Merger Sub Corporation, a Nevada corporation (the “Merger
Sub”) and uKarma Corporation, a Nevada corporation (“uKarma”), on the other
hand.
RECITALS
WHEREAS, the parties to this
Amendment entered into a certain Merger Agreement dated October 15, 2009
(“Merger Agreement”); and
WHEREAS, the parties to this
Amendment desire to amend the Merger Agreement as hereinafter
provided;
AGREEMENT
NOW, THEREFORE, in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Amendment agree as follows:
1. All
capitalized terms not defined herein shall have the respective meanings assigned
to them in the Merger Agreement.
2. The
second sentence of Section 1.2 is hereby modified to read in its entirety as
follows:
“This
Agreement may be terminated by any party if the Closing does not occur by May
15, 2010 provided such terminating party is not in breach of this
Agreement.”
3. Section
1.8 is hereby modified to read as follows:
“1.8 Payment
Advances. GCC shall pay to uKarma an amount equal to
$475,000 (“Cash Payment”) which shall be due on or prior to
Closing. The parties acknowledge that $175,000 of the Cash Payment
has already been paid to uKarma as a non-refundable deposit. $100,000
of the Cash Payment shall be due and payable from GCC to uKarma on or before
December 31, 2009. GCC shall pay uKarma an additional $100,000 of the
Cash Payment on or before January 30, 2010 and an additional $100,000 on or
before the later of (i) March 31, 2010 or (ii) the date that uKarma files its
Form 10-K for the fiscal year ended December 31, 2009. GCC shall also
pay uKarma for all reasonable costs associated with uKarma’s Form 10-K filing
for the year ended December 31, 2009, including all legal, accounting, transfer
agent, and XXXXX filing agent costs. All payments of the Cash Payment
shall be delivered via wire transfer by GCC to uKarma to a wire account
designated in writing by uKarma’s Chief Executive Officer.
4. Section
5.7 is hereby modified to read as follows:
“5.7 Audit. GCC
shall have completed its consolidated audited financial statements for the
fiscal years ended December 31, 2009 and 2008 before May 15, 2010, and its
reviewed financial statements for each subsequent fiscal quarter after December
31, 2009 if required for the Form 8-K with respect to this
transaction.”
5. This
Amendment shall be effective immediately. Except as amended hereby,
the Merger Agreement shall continue in full force and effect in accordance with
its terms.
IN WITNESS WHEREOF, the
parties have executed this Amendment as of the date set forth
above.
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Xxxxx
Capital Corporation, a Nevada corporation
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uKarma,
Inc., a Nevada corporation
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By:
/s/ Xxxxxxx X
Xxxxxxxxxx
Name: Xxxxxxx X
Xxxxxxxxxx
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By:
/s/ Xxxx Xxxxxx
Name:
Xxxx
Xxxxxx
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Title: Chairman
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Title:
Chief Executive
Officer
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GCC
Merger Sub Corporation, a Nevada
corporation
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By:
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/s/ Xxxx Xxxxxx | ||
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Name: Xxxx Xxxxxx
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Title: Chief Executive Officer
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