EXHIBIT 2.1
AMENDMENT OF UNIT REPURCHASE AGREEMENT
This Amendment of Unit Repurchase Agreement (this "Amendment"), is entered
into and effective as of this fourth day of April, 2002, by and between Integra,
Inc., a Delaware corporation, with an address at 0000 Xxxxx Xxxxxx, Xxxxx 000,
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000 ("Integra"), and Xxxxxx Xxxxxx, 7 Spyglass
Ridge, Ithaca, New York 14850 (the "Piltch"). Integra and Piltch are herein
referred to collectively as the "Parties", and severally as a "Party".
WHEREAS, the Parties entered into a Unit Purchase Agreement, dated as of
July 27, 2001 ("UPA"), governing the acquisition by Integra from Piltch of all
of the outstanding Units of Global Benefits Solutions LLC, a Delaware limited
liability company ("GBS"); and
WHEREAS, the UPA was executed contemporaneously with an employment
agreement whereby Piltch would become (and subsequently did become) the
President, CEO, and a Director of Integra; and
WHEREAS, such UPA was also executed contemporaneously with a Unit
Repurchase Agreement, dated as of July 27, 2001 ("URA"), by and between Integra
and Piltch that provides for the reacquisition of GBS by Piltch in certain
circumstances, and pursuant to certain stated terms and conditions; and
WHEREAS, the Parties desire to amend the URA to provide for different
terms and to provide for an accelerated transfer of GBS to Piltch upon such
amended terms and for additional consideration, all as herein stated.
NOW, THEREFORE, in consideration of the premises and the mutual promises
made in this Agreement, and in consideration of the representations, warranties,
and covenants contained herein, the Parties agree as follows:
1. Paragraph 1 of the URA is hereby amended by adding thereto a
subparagraph c), which shall read as follows:
"c) If Piltch shall cease for any reason to be a Director
or employee of Integra."
2. Piltch hereby irrevocably exercises his right to repurchase the Units
pursuant to paragraph 1(c) of the URA, as amended by this Amendment. The terms
of paragraph 2 of the URA entitled "Repurchase Price" are hereby amended in
their entirety, and the old provision deleted. The new provision now shall read:
"The full consideration for the repurchase of the Units by Piltch
will be the transfer by Piltch of (a) 1,000,000 shares of Integra
Common Stock (the "Common Stock"); (b) 107,500 shares of Integra
Series SP Preferred Stock (the "Preferred Stock"); (c) accounts
receivable of GBS as provided in paragraph 4(b)(i) below; (d) the
agreement of Piltch to contribute up to $50,000 toward the payment
of certain settlements or judgments as provided in paragraph
4(b)(ii) below; and (e) the other covenants and mutual promises made
in this Agreement (together, the "Obligations")."
3. The terms of Paragraph 3(a) of the URA are hereby amended in
their entirety, and the old provision deleted. The new provision now shall
read:
"Other than as otherwise specifically provided herein, Piltch is the
sole, legal owner of the Preferred Stock and Common Stock, free and
clear of any liens, security interests or other encumbrances
whatsoever and no person has any present or future right to acquire
the Preferred Stock or Common Stock or any interest therein. The
Parties acknowledge that Integra never issued Piltch a stock
certificate representing the shares of Preferred Stock and that
Piltch hereby relinquishes all rights to the Preferred Stock and/or
stock certificates representing the Preferred Stock. "
4. Paragraph 3(c) of the URA is hereby amended by adding the words "and
Common Stock" after each use of the words "Preferred Stock" in such paragraph
3(c).
5. The terms of paragraph 4(a) of the URA are hereby amended in
their entirety, and the old provision deleted. The new provision now shall
read:
"(a) To secure Piltch's full satisfaction of the Obligations, Piltch
hereby grants to Integra a security interest in, and pledges to
Integra, the Units pursuant to the Membership Unit Pledge Agreement
attached as Exhibit A (the "Pledge Agreement"), which Membership
Unit Pledge Agreement replaces the Membership Unit Pledge Agreement
originally attached as Exhibit A. Such Units shall be held by Xxxxxx
& Xxxxxx as Escrow Agent pursuant to the Escrow Agreement attached
as Exhibit B (the "Escrow Agreement")."
6. The terms of Paragraph 4(b) of the URA are hereby amended in
their entirety, and the old provision deleted. The new provision now shall
read:
"(b) (i) All accounts receivable of GBS ("AR") shall, to the extent
herein set forth, remain the property of and be on the books of
Integra for 120 days after the closing (the "AR Period") of the
transactions contemplated hereby (the "Closing"). Integra shall
collect all such AR during the AR Period. Such AR shall be deemed
"earmarked accounts" to be allocated and distributed as provided
below. Piltch agrees to, and agrees to cause GBS to, cooperate with
Integra in the collection by Integra of such AR in a timely manner.
The first $60,000 of such AR paid to Integra, Piltch or GBS during
any month of the first three (3) months of the AR Period shall be
allocated to Integra, and all additional AR collected shall be
allocated to GBS. All such AR paid in the fourth month of the AR
Period shall be allocated to GBS. Piltch shall deliver to Xxxxxx and
Xxxxxx at Closing, to be held in trust by Xxxxxx and Xxxxxx, three
checks payable to the order of Xxxxxx and Xxxxxx, one dated May 4,
2002, the second June 4, 2002 and the third July 4, 2002, each in
the amount of $60,000 (each, a "Piltch Check"). To the extent that
less than $60,000 of AR is paid to and received by Integra in any of
the first three (3) months of the AR Period, (1) Integra shall
notify Piltch and Xxxxxx and Xxxxxx in writing of such shortfall,
(2) Piltch shall be responsible for the payment to Integra of such
shortfall, (3) Piltch's responsibility to pay such shortfall shall
be satisfied within three (3) business days of Xxxxxx and Thaler's
receipt of such notice from Integra, by Xxxxxx and Thaler's cashing
of the Piltch Check for such month, Xxxxxx and Thaler's payment to
Integra of
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such shortfall, with the remaining amount of such Piltch Check to be
paid to Piltch by Xxxxxx and Xxxxxx, and (4) in the event that for
any reason funds are not available from the Piltch Check to pay
Integra the amount of such shortfall, Xxxxxx and Xxxxxx shall
promptly notify Integra and Piltch of such fact and Piltch shall pay
Integra by check or wire transfer the amount of such shortfall
within three (3) business days of Piltch's receipt of such notice
from Xxxxxx and Xxxxxx. Integra shall be allocated no more than an
aggregate of $180,000 for such AR. Each Party shall be and be deemed
an escrow agent as to any such AR collected by such Party during the
AR Period, a fiduciary of such AR for the benefit of the Party to
which such AR should be allocated, and all such AR shall be
allocated as set forth above and held in trust for the Party to
which such AR is allocated. If any third party enforces any rights,
liens or security interests in and to such AR, then the Party
holding such AR shall remain responsible for transferring such AR to
the Party allocated such AR, or with the consent of the Party
allocated such AR, an amount of money equal to the amount of the AR
that was or should have been received by or paid to the Party
allocated such AR, but for the enforcement of such right, lien, or
security agreement. All AR collected after the AR Period shall be
the property of GBS and shall be delivered to GBS or Piltch, and
Integra shall promptly notify all third parties owing such AR that
payments shall no longer be delivered to Integra."
(ii) Piltch shall pay to Integra by check or wire transfer up
to $50,000 within three (3) business days after Integra's written
demand to Piltch for such payment to be used exclusively by Integra
in the payment of the final settlement of claims advanced by Xxxx
Xxxxxxxx and Xxxx Xxxxxxxx against Integra; provided, that Integra
shall provide Piltch with a copy of the proposed settlement
agreement with its written demand, which settlement agreement shall
include a release and withdrawal of such claims against Integra and
Piltch, and, in the event that the amount of such settlements is
less than $50,000, that Piltch shall not be required to pay to
Integra any more than the amount that Integra actually settles for
in such settlements.
(iii) The Parties hereby acknowledge and agree that all
obligations and liabilities of GBS, including without limitation all
accounts payable of GBS, shall remain with GBS after the Closing and
that Integra shall not be responsible for any such obligations or
liabilities of GBS after the Closing. Piltch agrees to indemnify,
defend and hold harmless Integra from and against any liabilities,
claims, demands, judgments, losses, costs, damages or expenses
whatsoever (including reasonable attorneys', consultants' and other
professional fees and disbursements of every kind, nature and
description incurred by Integra in connection therewith) that
Integra may sustain, suffer or incur and that result from, arise out
of or relate to any such liabilities or obligations of GBS. Schedule
A hereto lists AR and certain GBS liabilities and obligations, in
each case known to Integra as of April 4, 2002.
(iv) During the AR Period, each Party shall submit to the
other within fifteen days after the end of each month of the AR
Period, an accounting of the AR actually paid to and received by
such Party."
7. Upon the execution of this Amendment by the Parties, Piltch shall
deliver to Integra (a) the certificates representing the Common Stock together
with duly executed and
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appropriate stock powers transferring such certificates to Integra and (b) the
Pledge Agreement and Escrow Agreement executed by Piltch. Upon the execution of
this Amendment by the Parties, Integra shall deliver to Piltch the Pledge
Agreement and Escrow Agreement executed by Integra.
8. Effective upon the 121st day after the Closing, except to the extent a
claim is made prior to such date or as otherwise prohibited by applicable law,
each Party hereby forever releases, remises and discharges the other and each of
the other Party's respective directors, officers, representatives, employees,
successors and assigns and each of the affiliates of each of the foregoing from
any and all claims, demands, controversies, actions, causes of action,
obligations, liabilities, costs, expenses, fees, and damages whatsoever in
character, nature and kind, in law or in equity, past or present, known or
unknown, suspected or unsuspected, from the beginning of time until the 120th
day after the Closing, except as to (a) any such actions or claims one Party may
have against the other resulting from fraud committed by such other Party, (b)
any such actions or claims that Integra may have against Piltch which arise from
actions taken by Piltch on behalf or in the name of Integra which were outside
the scope of Piltch's power or authority to take on behalf or in the name of
Integra, and (c) any rights or obligations specifically set forth in this
Amendment, the Pledge Agreement, the Escrow Agreement or in the URA.
9. Upon execution of this Amendment, the Escrow Agreement, dated as of
July 27, 2001, by and among Integra, Piltch and Xxxxxx & Xxxxxx, shall be deemed
cancelled and terminated and Xxxxxx & Xxxxxx, as the escrow agent thereunder,
shall be instructed by Piltch and Integra to continue to hold the Units pursuant
to the Pledge Agreement and Escrow Agreement referred to in paragraph 5 above.
Upon execution of such Pledge Agreement and Escrow Agreement by all of the
parties thereto, Xxxxxx & Xxxxxx shall be released from all liability in
connection with the aforementioned July 27, 2001 Escrow Agreement. Additionally,
at Closing, the Membership Unit Pledge Agreement executed by the Parties as of
July 27, 2001 shall be deemed cancelled and terminated, and Integra shall have
no further obligation to make any payments or issue any dividends, whether
accrued or to be accrued, to Piltch upon the Preferred Stock or Common Stock.
10. Absent the prior written consent of the Board of Directors of Integra,
for a period of one (1) year from the Closing date, Piltch hereby agrees not to,
directly or indirectly, including, without limitation, through GBS, own, manage,
operate, join, control, finance or participate in the ownership, management,
operation, control or financing of, or be connected as a partner, principal,
agent, representative, consultant or otherwise with, or use or permit his name
or the name of GBS to be used in connection with, any business or enterprise
engaged in the employee assistance, behavioral health or health plan business
(the same as the health plan business conducted by Integra on the date of this
Amendment), and Piltch agrees not to and to cause GBS not to solicit for any
reason any client of Integra for the purpose of providing such employee
assistance, behavioral health or health plan services for said one-year period,
except to the extent pursuant to an agreement with Integra, and except with
respect to the business conducted by GBS as of the Closing.
11. This Amendment shall not confer any rights or remedies upon any person
other than the Parties and their respective successors and permitted assigns.
This Agreement is personal to each Party and may not be assigned without the
written permission of both Parties.
12. Except as explicitly modified by this Amendment, all of the provisions
of the URA are hereby ratified and confirmed to be in full force and effect, and
shall remain in full force and effect.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment of
Unit Purchase Agreement effective as of the date first written above.
_______________________________________
XXXXXX XXXXXX
INTEGRA, INC.
By:____________________________________
Xxxxxxx Xxxxxx, Chairman of the
Board of Directors of Integra, Inc.
FOR THE PURPOSE OF AGREEING TO PARAGRAPH
4(b)(i) OF THE URA AS SET FORTH IN SECTION 6
ABOVE:
XXXXXX AND XXXXXX
By:___________________________________
Xxxxxxx X. Xxxxxx, Senior Partner
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