SECOND AMENDMENT OF THE AGREEMENT AND PLAN OF SHARE EXCHANGE
This SECOND AMENDMENT OF THE AGREEMENT AND PLAN OF SHARE EXCHANGE
("Amendment") is made as of the date set forth above the signatures hereto, by
and among INNOVUS CORPORATION, a Delaware corporation ("Innovus"), INTERMARK
CORPORATION, a California corporation ("Intermark"), and the securityholders of
Intermark identified on the signature pages hereto who execute this Amendment,
in order to amend the Agreement And Plan Of Share Exchange (the "Agreement"),
made as of the 8th day of May, 1998, by and among INNOVUS CORPORATION, a
Delaware corporation ("Innovus"), INTERMARK CORPORATION, a California
corporation ("Intermark"), and the securityholders of Intermark identified on
the signature pages hereto who execute the Agreement ("Exchanging
Securityholders").
FOR GOOD AND VALUABLE CONSIDERATIONS, the receipt and sufficiency of which
are hereby acknowledged, the Agreement is hereby amended as follows:
1. The conditions in Section 6(b)(iii) and Section 6(c)(iii) of the
Agreement are hereby fully and mutually waived, released and relinquished.
2. Section 7 of the Agreement is amended to define the term
Termination Date to mean August 4, 1998 for any and all purposes under each and
every Section, term or provision of the Agreement in which the term Termination
Date appears.
3. The definition of Preferred Exchange Ratio in Section 1 of the
Agreement is incorrect and would yield results that were meaningless. The
definition is hereby amended to reverse the previous order of item (ii) and item
(iii), which were in the wrong order. The definition, as corrected, is restated
in its entirety as follows:
"Preferred Exchange Ratio" means the number that is found by executing
the following calculations in the order as set forth: (i) multiplying
the number of Fully-Diluted Innovus Shares by the number three (3);
(ii) subtracting from that multiplication product the number of
Innovus Available Common Shares; (iii) dividing that subtraction
difference by the number of Fully-Diluted Intermark Shares; and (iv)
dividing that division quotient by five hundred sixty-two and one-half
(562 1/2).
4. The Preferred Exchange Ratio and the Option Exchange Ratio hereby
are increased by multiplying the respective ratio determined in accordance with
the formulae in the Agreement, as amended by Section 3, hereinabove, by a factor
of 1.1481.
5. The obligations of each of the parties under Section 9(d) shall be
deemed satisfied.
6. Section 2(h) shall be amended and restated in full to read as
follows:
(h) On the Closing Date, Innovus shall cause to be delivered to
Innovus and Intermark such resignations of directors and officers of
Innovus and cause to take effect such amendments of its bylaws as may
be necessary or appropriate to elect Xxxxxx Xxxxxxxxx and other
designates of Intermark to constitute a majority of the authorized
number of members on the Innovus Board of Directors effective 10 days
after Innovus has filed with the SEC and transmitted to the holders of
voting shares of Innovus the information specified pursuant to Rule
14f-1 as promulgated by the SEC under the Securities Exchange Act of
1934. In the meantime, immediately the Closing, the number of
directors shall be three, with one vacancy, and the members of the
Board of Directors shall be Xxx Xxxxxxxxx and Xxxxx Xxxx.
7. Innovus shall have no liability or obligation to Intermark or the
Exchanging Securityholders under, on account of or arising from any
indebtedness, liability or obligation which is disclosed in the SEC Reports
referred to in Section 5(e) of the Agreement (including the financial statements
included therein), the Innovus Disclosure Schedule (as supplemented in writing
to the Closing) or the Innovus Form 10-K (and the financial statements included
therein) to be filed with the SEC and in the form provided to Intermark on or
prior to the Closing Date.
8. The Agreement, as expressly amended hereby, and as previously
amended by the First Amendment of Share Exchange Agreement, dated June 17, 1998,
shall continue in full force and effect, on and subject to the terms of the
Agreement, as amended.
IN WITNESS WHEREOF, the parties hereto have entered into the foregoing
Second Amendment of Agreement and Plan of Share Exchange as of the 30th day of
July, 1998.
INNOVUS CORPORATION, INTERMARK CORPORATION,
a Delaware corporation a California corporation
Xxxxx Xxxx /s/ Xxx Xxxxxxxxx
By:------------------------------ By:-------------------------------
Xxxxx Xxxx, Chief Financial Officer Xxx Xxxxxxxxx, Chief Executive
and Chairman of the Board Officer
/s/ T. Xxxxxxx Xxxx
By:--------------------------------
T. Xxxxxxx Xxxx, Secretary
/s/ Xxxxx Xxxx
By:--------------------------------
[SIGNATURES CONTINUE ON NEXT PAGE] Xxxxx Xxxx, Vice President
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SIGNATURES CONTINUED FROM PRIOR PAGE]
EXCHANGING SECURITYHOLDERS
/s/ Xxx Xxxxxxxxx
---------------------------------
Xxx Xxxxxxxxx, an individual
Number of Intermark
Common Shares: 960,000
Number of Intermark Options: 250,000
/s/ Xxxxx Xxxx
---------------------------------
Xxxxx Xxxx, an individual
Number of Intermark
Common Shares: 960,000
Number of Intermark Options: 100,000
/s/ T. Xxxxxxx Xxxx
---------------------------------
T. Xxxxxxx Xxxx, an individual
Number of Intermark
Common Shares: 960,000
Number of Intermark Options: 100,000
/s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx, an individual
Number of Intermark
Common Shares: 120,000
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxx Xxxx
---------------------------------
Xxx Xxxx, an individual
Number of Intermark
Common Shares: 35,000
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ XX X'Xxxxxx
---------------------------------
XX X'Xxxxxx, an individual
Number of Intermark
Common Shares: 90,000
By: Xxx Xxxxxxxxx, attorney-in-fact
[SIGNATURES CONTINUE ON NEXT PAGE]
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[SECOND AMENDMENT OF AGREEMENT AND PLAN OF SHARE EXCHANGE:
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/s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx, an individual
Number of Intermark
Common Shares: 35,000
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxxx Xxx
---------------------------------
Xxxxx Xxx, an individual
Number of Intermark
Common Shares: 10,000
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxxxxxx Xxxxx
---------------------------------
Xxxxxxxx Xxxxx, an individual
Number of Intermark
Common Shares: 10,000
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx, an individual
Number of Intermark
Common Shares: 12,500
Number of Intermark Options: 10,000
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx, an individual
Number of Intermark
Common Shares: 12,500
Number of Intermark Options: 10,000
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx, an individual
Number of Intermark Shares: 20,000
Number of Intermark Options: 60,000
By: Xxx Xxxxxxxxx, attorney-in-fact
[SIGNATURES CONTINUE ON NEXT PAGE]
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/s/ Xxxxxxxx X. Xxxxx
---------------------------------
Xxxxxxxx X. Xxxxx, an individual
Number of Intermark
Common Shares: 60,000
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxxx Xxxxxxx
---------------------------------
Xxxxx Xxxxxxx, an individual
Number of Intermark
Common Shares: 45,000
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxxxxx Xxxxxxx
---------------------------------
Xxxxxxx Xxxxxxx, an individual
Number of Intermark
Common Shares issuable under
convertible note: 3,750
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxx Xxxxxxx
---------------------------------
Xxxx Xxxxxxx, an individual
Number of Intermark
Common Shares issuable under
convertible note: 6,250
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxx Xxxxxxxx
---------------------------------
Xxxx Xxxxxxxx, an individual
Number of Intermark
Common Shares: 19,755
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx, an individual
Number of Intermark
Common Shares issuable under
convertible notes: 68,750
By: Xxx Xxxxxxxxx, attorney-in-fact
[SIGNATURES CONTINUE ON NEXT PAGE]
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/s/ Xxx X'Xxxxxx
---------------------------------
Xxx X'Xxxxxx, an individual
Number of Intermark
Common Shares issuable under
convertible note: 12,500
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx, an individual
Number of Intermark
Common Shares issuable under
convertible note: 3,125
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx, an individual
Number of Intermark
Common Shares issuable under
convertible note: 3,125
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxx Xxx Xxxxx
---------------------------------
Xxxx Xxx Xxxxx, an individual
Number of Intermark
Common Shares issuable under
convertible notes: 12,500
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx, an individual
Number of Intermark
Common Shares issuable under
convertible note: 6,250
By: Xxx Xxxxxxxxx, attorney-in-fact
[SIGNATURES CONTINUE ON NEXT PAGE]
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/s/ Xxxxxxx X. Vierila
---------------------------------
Xxxxxxx X. Vierila, Trustee of the
Xxxxxxx X. Vierila Trust
Number of Intermark
Common Shares issuable under
convertible note: 12,500
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxxx Xxxx
---------------------------------
Xxxxx Xxxx, an individual
Number of Intermark
Common Shares issuable under
convertible note: 12,500
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxx Xxx
---------------------------------
Xxxx Xxx, an individual
Number of Intermark
Common Shares issuable under
convertible note: 3,125
By: Xxx Xxxxxxxxx, attorney-in-fact
GLOBAL MARKETING PARTNERS, INC.
By: /s/ Xxxx Xxxxxxxx
------------------------------
Xxxx Xxxxxxxx, President
Number of Intermark
Common Shares: 6,000
By: Xxx Xxxxxxxxx, attorney-in-fact
NUTRIDATA
By: /s/ Xxxx Xxxxxx
--------------------------
Xxxx Xxxxxx, President
Number of Intermark
Common Shares: 6,000
By: Xxx Xxxxxxxxx, attorney-in-fact
[SIGNATURES CONTINUE ON NEXT PAGE]
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/s/ Xxxx Xxxxxxxxxx
---------------------------------
Xxxx Xxxxxxxxxx, an individual
Number of Intermark
Common Shares issuable under
convertible notes: 25,000
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx, an individual
Number of Intermark Options: 10,000
By: Xxx Xxxxxxxxx, attorney-in-fact
/s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx, an individual
Number of Intermark
Common Shares: 10,000
By: Xxx Xxxxxxxxx, attorney-in-fact
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