EXHIBIT 2.8
SUPPLEMENT TO SHAREHOLDER AGREEMENT
This SUPPLEMENT TO SHAREHOLDER AGREEMENT is made this 13th day of
April, 2000, by and between MedCom USA, Inc., a Delaware corporation
("PURCHASER") and Xxxx Xxxxx, an individual ("SELLER"), with respect to the
following facts:
RECITALS:
A. Pursuant to a Shareholder Agreement dated March 31, 2000 between
Seller and Purchaser (the "SHAREHOLDER AGREEMENT"), the Seller has agreed to
sell to Purchaser, subject to certain conditions, all of Seller's share in DCB
Actuaries and Consultants, s.r.o., a limited liability company organized under
the laws the Czech Republic (the "COMPANY"). For purposes hereof, the term
"Share" shall refer to the limited liability company interest in the Company
owned by Seller, including Seller's entire legal and economic interest in the
Company.
B. Under agreements similar to the Shareholder Agreement (the
"Remaining Agreements"), certain of the remaining holders of a limited liability
interest in the Company have also agreed to sell such interest in the Company to
the Purchaser. Pursuant to an agreement (the "Share Purchase Agreement") with
Xxxxx Xxxxxxxx and Xxxxxxxx Xxxxxxx, the Purchaser has agreed to purchase their
limited liability company interests in the Company.
C. Purchaser and Seller desire that Seller agree to the terms hereof in
order to induce Purchaser to complete the transactions contemplated by the Share
Purchase Agreement and the Remaining Agreements. Seller acknowledges that as of
the date hereof, Purchaser is not obligated to proceed with or consummate such
transactions.
AGREEMENT
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1. PURCHASE PRICE. The purchase price for the Share being purchased by
the Purchaser shall be as set forth in the Shareholder Agreement, and this
Agreement does not modify such purchase price in any way.
2. CLOSING OF TRANSACTION. The sale of the Share by Seller to Purchaser
under the Shareholder Agreement shall be coordinated with and shall occur
simultaneously with the closing of the transactions contemplated by the Share
Purchase Agreement and the Remaining Agreements. Within one business day after
the Closing, the Purchaser shall deliver to Seller the cash portion of the
purchase price as set forth in the Shareholder Agreement. The cash portion of
the purchase price for all outstanding shares of limited liability company
interest may be transferred by wire transfer to the Company's US dollar account,
for immediate distribution to the Seller and the other sellers of such limited
liability company interests. Within 30 days after the Closing, the Purchaser
shall deliver to the Seller a stock certificate representing the preferred stock
of the Purchaser to which the Seller shall be entitled hereunder and under the
Shareholder Agreement.
3. REPRESENTATIONS AND WARRANTIES. Seller agrees with, and represents
and warrants to Buyer as follows:
(a) ORGANIZATION. This Agreement and the Shareholder Agreement
each has been duly executed and delivered by Seller, and constitutes a
legal, valid and binding obligation of Seller, enforceable against him
in accordance with its terms.
(b) OWNERSHIP OF SHARES AND POWER TO TRANSFER. The Share is
validly issued and outstanding, fully paid and nonassessable. The Share
represents a 13% limited liability company interest in the Company.
Seller has not granted any, and there are no outstanding options,
subscription rights, proxy or voting rights or any other commitments of
any character relating to the Share. Seller has good and valid title to
the Share, free and clear of any claims or other rights or interests of
any person, and Seller has the absolute and unrestricted right, power,
authority and capacity to transfer the Share to Buyer at the Closing.
Upon consummation of the Closing, without exception Buyer will acquire
from Seller legal and beneficial ownership of, and good and valid title
to, and all rights to vote, the Share, free and clear of all
restrictions, options, security interests and adverse or equitable
claims or rights whatsoever.
(c) CONSENTS AND APPROVALS OF GOVERNMENTAL AUTHORITIES. No
approval, authorization or filing or registration with any governmental
or regulatory authority by Purchaser, Seller or the Company is required
in connection with the execution, delivery and performance of this
Agreement by Seller.
(d) AGREEMENT NOT A BREACH. The execution and performance of
this Agreement by Seller will not (i) conflict with or result in a
breach of the terms of any obligation under, or permit termination of,
any agreement to which Seller is a party; (ii) conflict with or violate
the provisions of any law or any judgment, decree, order, regulation or
rule of any court or governmental authority binding upon Seller or the
Company; (iii) violate or result in the modification or loss of any
permit, license or other authorization applicable to the Company; or
(iv) result in the creation of any material lien or charge upon the
Share or any assets of the Company.
(e) LITIGATION. No legal proceedings are pending or, to the
knowledge of Seller, threatened against the Company or the Seller.
(f) COMPLIANCE WITH LAW. To the Seller's knowledge, the
conduct of business by the Company has not violated and does not
violate in any material respect any federal, state, local or foreign
laws, rules, regulations, orders, or other similar items in force on
the date hereof.
(g) BROKERS COMMISSION OR FINDER'S FEE. Seller has not
retained any broker or finder or agreed to become obligated to pay any
fee or commission to any broker or finder for or an account of the
transactions contemplated by this Agreement. The Purchaser shall be
responsible for the fees and commissions of any broker or finder
engaged by it in connection with these transactions.
(h) DISCLOSURE. Seller acknowledges that he has received and
had an opportunity to review: (i) the Purchaser's Annual Report on Form
10-K for the year ended June 30, 1999; (ii) the Purchaser's Quarterly
Report on Form 10-Q for the quarter ended December 31, 1999; and (iii)
the Purchaser's supplemental disclosure document dated April 10, 2000,
concerning certain risks associated with an investment in the
Purchaser's securities. Seller further acknowledges that he has had the
opportunity to ask questions and receive answers concerning the terms
and conditions of the issuance of the Purchaser's securities to Seller,
and to obtain any additional information which the Purchaser possesses
or can acquire without unreasonable effort or expense that is necessary
to verify the accuracy of the information provided to Seller concerning
the Purchaser.
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(i) RESIDENCE. Seller's permanent residence is in the Czech
Republic.
(j) RESTRICTIONS ON RESALE. Seller understands that the
preferred shares to be issued by the Purchaser upon the closing of the
transactions contemplated by the Shareholder Agreement, and the common
shares that are issuable upon the conversion of such preferred shares,
shall be issued pursuant to an exemption from registration under the
United States securities laws, and that, accordingly, such shares are
being purchased for investment and not with a view to the unregistered
distribution or resale thereof, except to the extent permitted by
applicable law. Seller understands that he will not be entitled to
resell or transfer such preferred stock or common stock of the
Purchaser until such resale or transfer is registered under the
applicable securities laws or an exemption from registration is
available. Purchaser has no obligation to register such securities. The
certificate representing such securities shall bear a legend reflecting
such restrictions.
4. NO OTHER EFFECT ON SHAREHOLDER AGREEMENT. Except as expressly set
forth herein, the Shareholder Agreement shall remain in full effect, according
to its terms.
5. COUNTERPARTS. This Supplement to Shareholder Agreement may be
executed in two counterparts, which taken together shall be deemed a single
instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the dates indicated opposite their names below.
MEDCOM.USA, INC.
Date: April 14, 2000 By: /S/ XXXXXXX XXXXX
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SELLER
Date: April 13, 2000 /S/ XXXX XXXXX
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Xxxx Xxxxx
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