AMENDMENT TO STOCK PURCHASE AGREEMENT
Exhibit
2.3(c)
AMENDMENT
TO STOCK PURCHASE AGREEMENT
THIS
AMENDMENT TO STOCK PURCHASE AGREEMENT (hereinafter referred to as the
“Amendment”) is made as of the Effective Date indicated below by and among The
Amacore Group, Inc. (“Buyer”), US Health Benefits Group, Inc. (“USHBG”), US
Healthcare Plans, Inc. (“USHCP”), On The Phone, Inc. (“OTP”) (USHBG, USHCP and
OTP are hereinafter collectively referred to as the “Company”) and
Xxxxxx Xxxxxxx (“Stockholder”) (Buyer, Company, and Stockholder are hereinafter
collectively referred to as the “Parties”).
RECITALS
WHEREAS, on or about March 31,
2008, Buyer, Company and Stockholder entered into a certain Stock Purchase
Agreement (“Original Agreement”);
WHEREAS, as of the date
hereof, Buyer has paid to Stockholder Two Million One Hundred Ninety One
Thousand Six Hundred Sixty Three and 75/100 Dollars
($2,191,663.75);
WHEREAS, The Parties hereto
are mutually desirous of amending Original Agreement as set forth
herein.
NOW,
THEREFORE, the parties, intending to be legally bound hereby, for good and
valuable consideration, the receipt and sufficiency of which are herby
acknowledged, and in consideration of the mutual covenants contained herein
agree as follows:
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1.
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The
above recitals are true and correct and are incorporated herein by
reference.
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2.
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The
definitions of “Adjustment Date” and “Net Contribution” in Section 1 of
the Original Agreement are hereby deleted in their
entirety.
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3.
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Section
2 of the Original Agreement is deleted in its entirety and replaced with
the following Section 2:
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“Section
2. Purchase and Sale of
Shares.
2.1.
Purchase Price: The
value of one hundred percent (100%) of the Shares is, for purposes of this
Agreement, Four Million Three Hundred Thirty One Thousand Six Hundred Sixty
Three Dollars and 75/100 Dollars ($4,331,663.75) (hereinafter referred to as the
“Purchase Price”). The Purchase Price is payable as follows:
(a) Initial Cash:
As of the date hereof,
Buyer has paid Stockholder the sum of Two Million One Hundred Ninety One
Thousand Six Hundred Sixty Three and 75/100 Dollars ($2,191,663.75) (hereinafter referred to as the
“Initial Payment”). The Initial Payment shall constitute consideration under
this Agreement and reduce the Purchase Price by Two Million One Hundred
Ninety One Thousand Six Hundred Sixty Three and 75/100 Dollars
($2,191,663.75);
(b)
Cash At Amendment Closing:
At the Amendment Closing (as defined in Section 3 infra), the Buyer shall
pay the Stockholder a sum of Seven Hundred Thirty Seven Thousand Five Hundred
and NO/100 Dollars ($737,500.00);
(c)
Initial Stock: At the
Amendment Closing, the Buyer shall deliver to the Stockholder, or cause to be
delivered to the Stockholder, One Million Eight-Hundred Thousand (1,800,000)
shares of the Buyer’s Class A common stock which, for purposes of this Agreement
is valued at $0.05 per share or Ninety Thousand and NO/100 Dollars ($90,000.00).
This shall constitute consideration under this Agreement and reduce the Purchase
Price by Ninety Thousand and NO/100 Dollars ($90,000.00);
(d)
Promissory Note: At the
Amendment Closing, the Buyer shall execute a Promissory Note in favor of the
Stockholder for One Million Three Hundred Twelve Thousand Five Hundred Dollars
and 00/100 ($1,312,500.00) with an interest rate of 3.25% per annum, payable
over a three (3) year period with such other terms and conditions that are more
particularly set forth in that certain Promissory Note attached hereto as Exhibit 1 (hereinafter
referred to as the “Promissory Note”). The terms of the Promissory Note are
hereby incorporated into this Agreement. If any conflict arises between the
Promissory Note and this Agreement, this Agreement shall take precedent over the
Promissory Note and govern any conflict.
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4.
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Section
3 of the Original Agreement is deleted in its entirety and replaced with
the following Section 3:
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“Section
3. Closing. The closing
of the Amendment (hereinafter referred to as the “ Amendment Closing”) shall be
held on June 10, 2009 at 10:00 A.M. at the offices of The Amacore
Group, Inc., 000 X. Xxxxxx Xx. Xxxxx 000 Xxxxxxxx, XX 00000.
3.1.
Closing Deliveries of
Buyer. At the Amendment Closing, Buyer shall deliver to
Stockholder the following:
(a)
Employment Agreement, duly executed by Buyer, a copy of which is attached hereto
as Exhibit 2;
(b)
Certificates issued in the name of Stockholder representing One Million Eight
Hundred Thousand (1,800,000) shares of Series A common stock of
Buyer
(c)
A cash payment in the amount of Seven Hundred Thirty Seven Thousand Five Hundred
and NO/100 Dollars ($737,500.00);
(d)
The Promissory Note, duly executed by Buyer;
(e)
A certificate of an appropriate officer of Buyer, a copy of which is attached
hereto as Exhibit 3, certifying resolutions of
the Board of Directors of Buyer authorizing the transactions contemplated in the
Amendment and the incumbency of any such officers;
(f)
A certificate of an appropriate officer of Buyer, a copy of which is attached
hereto as Exhibit 4,
certifying resolutions of the sole shareholder of USHBG, USHCP and OTP
authorizing the transactions contemplated in the Amendment and the incumbency of
any such officers;
(g)
Buyer’s Closing Statement, a copy of which is attached hereto as Exhibit 5;
and
(h)
An Indemnity Agreement, duly executed by Buyer a copy of which is attached
hereto as Exhibit 6, which terms and conditions shall be incorporated herein
this Amendment.
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3.2.
Closing Deliveries of
Stockholder. At the Amendment Closing, the Stockholder shall
deliver to the Buyer the following:
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(a)
A Document, executed by Xxxxx Legal, a copy of which is attached hereto as Exhibit 7 as to his ownership of the
Shares at the time of the Original Agreement Closing and the release of any
claims thereto;
(b)
Stockholder Closing Statement, a copy of which is attached hereto as Exhibit 8;
(c)
Employment Agreement, duly executed by Stockholder, a copy of which is attached
hereto as Exhibit
2;
(d)
Certificate of the Stockholder, a copy of which is attached hereto as Exhibit 9 as to his corporate
authority to enter into and bind the Company to the Original Agreement;
and
(e) An
Indemnity Agreement, duly executed by Stockholder, a copy of which is attached
hereto as Exhibit 6, which terms and conditions shall be incorporated herein
this Amendment.”
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5.
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Section
4 of the Original Agreement is hereby amended by adding the following
Sections 4.16, 4.17 and 4.18.
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“4.16.
Stockholder has the power and authority to execute the Amendment and any other
documents to which it may become a party at the Amendment Closing.
4.17.
Each document executed and delivered at the Amendment Closing by the Stockholder
has been duly executed and delivered by it and constitutes a valid and binding
obligation of it enforceable in accordance with its terms.
4.18.
Neither the execution and delivery of the Amendment nor any documents delivered
at the Amendment Closing will require any consent, regulation or approval,
constitute a default under (a) any law or court order to which the Stockholder
is subject or (b) any material contract, governmental permit or other document
to which the Company may be a party.”
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6.
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Section
5 of the Original Agreement is hereby amended by adding the following
Sections 5.3, 5.4, 5.5, 5.6 and
5.7.
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“5.3.
On the Closing Date of the Original Agreement, Stockholder owned one hundred
percent (100%) of the outstanding shares of each of USHBG, USHCP and
OTP.
5.4.
On the Closing Date of the Original Agreement, Stockholder was authorized,
empowered and directed by Company to enter into the Original Purchase Agreement
and to sell the Shares.
5.5.
Stockholder has the power and authority to execute the Amendment and any other
documents to which he may become a party at the Amendment
Closing.
5.6.
Each document executed and delivered at the Amendment Closing has been duly
executed and delivered by Stockholder and constitutes a valid and binding
obligation of Stockholder enforceable in accordance with its terms
5.7. Neither
the execution and delivery of the Amendment nor any documents delivered at the
Amendment Closing will require any consent, regulation or approval, constitute a
default under (a) any law or court order to which Stockholder is subject or (b)
any material contract, governmental permit or other document to which
Stockholder may be a party.”
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7.
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Section
6 of the Original Agreement is hereby amended by adding the following
Sections 6.3, 6.4, 5.5 5.6 and 5.7.
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“6.3.
All Annual Reports of Form 10-K, Quarterly Reports on Form 10-Q and Current
Reports of Form 8-K (the “SEC Documents”) filed by Buyer with the Securities and
Exchange Commission (the “SEC”) complied in all material respects with the
requirements of the Securities Exchange Act of 1934 and the rules and
regulations of the SEC promulgated thereunder and other federal, state and local
laws, rules and regulations applicable to such SEC Documents.
6.4.
Buyer and each Company has the power and authority to execute the Amendment and
any other documents to which it may become a party at the Amendment
Closing.
6.5.
Each document executed and delivered at the Amendment Closing has been duly
executed and delivered by Buyer and each Company and constitutes a valid and
binding obligation of Buyer and each Company enforceable in accordance with its
terms
6.6.
Neither the execution and delivery of the Amendment nor any documents delivered
at the Amendment Closing will require any consent, regulation or approval,
constitute a default under (a) any law or court order to which Buyer is subject
or (b) any material contract, governmental permit or other document to which
Buyer may be a party.
6.7.
Buyer has good and marketable title to the Shares and the full right and power
to transfer the Shares. The Shares are owned by Buyer free and clear
of all mortgages, pledges, liens, security interests, encumbrances, conditional
sales agreements, claims and restrictions of any kind and nature whatsoever and
at the Amendment Closing Stockholder will acquire good and valid title to the
Shares free and clear of all mortgages, pledges, liens, security interests,
encumbrances, condition as sales agreements, claims and restrictions of any kind
and nature whatsoever.”
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8.
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The
Parties agree that Schedules 4.6, 4.8, 4.9, and 4.12 were inadvertently,
and through no fault of either party, not completed on the Closing Date of
the Original Agreement and waive any claims with respect
thereto.
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9.
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This
Amendment may be executed in two or more counterparts each of which shall
be binding and shall constitute one and the same
instrument. This Amendment and the Schedules and Exhibits
attached hereto constitute the complete and exclusive agreement between
the Parties hereto which supersedes all proposals, oral and written, and
all other communications between the Parties relating to the subject
matter contained herein.
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10.
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This
Amendment shall be construed and interpreted in accordance with the laws
of Broward County in the State of Florida without regards to its
provisions concerning conflicts of
laws.
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11.
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Terms
not otherwise defined herein shall have the meanings assigned in the
Original Agreement.
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12.
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If
any of the provisions of this Agreement are held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
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13.
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Sections
7, 8 and 9 of the original Agreement are deleted in their
entirety
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14.
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The
Parties hereby fully and forever release and discharge each other, their
successors, assigns, officers, directors, shareowners, agents and
employees (collectively, “The Released
Parties”), of and from any and all claims, liabilities,
controversies, suits, actions, causes of action, judgments, damages, or
demands in law or in equity, known or unknown, liquidated or contingent,
material or immaterial, from the beginning of time to the present (“Claims”) as
they relate to (1) any discussions and/or negotiations between the Parties
preceding and with regard to the Original Agreement; (2) the Original
Agreement or any exhibit or amendment related thereto, other than this
Amendment; (3) the sufficiency of any consideration under the Original
Agreement; (4) the Closing immediately following the Original Agreement;
(5) the sufficiency or status of any ownership or authority of any party
to the Original Agreement; (6) the sufficiency or status of the authority
of any party to the Amendment; and (7) the sufficiency of any
consideration under the Amendment. Specifically, this Section
13 is intended to preclude the Parties from any claims against one another
regarding the Original Agreement or those aspects of this Amendment
detailed above. This Section 13 is not intended to preclude the
Parties from, where appropriate and applicable under agreement between the
Parties, contract between the parties, or by law, seeking indemnification
from the other for claims that arise from third parties, regardless of the
manner of those claims.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date contained herein.
By: /s/ Xxx
Xxxxxx
Name: Xxx
Xxxxxx
Title:
CEO
Date: June
10, 2009 (“Effective Date”)
US
HEALTH BENEFITS GROUP, INC.
By: /s/ Xxx
Xxxxxx
Name: Xxx
Xxxxxx
Title:Date: June
10, 2009
US
HEALTHCARE PLANS, INC.
By: /s/ Xxx
Xxxxxx
Name: Xxx
Xxxxxx
Title:Date: June
10, 2009
ON
THE PHONE, INC.
By: /s/
Xxx
Xxxxxx
Name: Xxx
Xxxxxx
Title:
Date: June
10, 2009
XXXXXX
XXXXXXX
By: /s/
Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Date: June
10, 2009