AMENDMENT TO
STOCK PURCHASE AGREEMENT
AMENDMENT TO STOCK PURCHASE AGREEMENT dated as of May 30, 2002 by and
among Stonepath Logistics Domestic Services, Inc., a Delaware corporation
("Purchaser"), United American Acquisitions and Management, Inc., a Michigan
corporation d/b/a "United American Freight Services, Inc." (the "Company"), and
Xxxxxxx Xxxxx (the "Shareholder").
WITNESSETH:
WHEREAS, the parties hereto (individually a "Party" and collectively
the "Parties") are the parties to the Stock Purchase Agreement dated April 9,
2002 (the "Stock Purchase Agreement"); and
WHEREAS, the Parties have agreed to amend the Stock Purchase Agreement
to reflect the understandings set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements set forth in this Amendment and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, the Parties hereby agree as follows:
1. Amendments to Stock Purchase Agreement.
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(a) The Stock Purchase Agreement is hereby amended by adding
the following new Section 1.4 at the end of Article I of the Stock Purchase
Agreement:
"1.4 Post-Closing Tax Distribution Adjustment.
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(a) During the period commencing on January 1, 2002
and ending immediately prior to the Closing, the Company has made no
distributions to the Shareholder covering the federal and state income taxes
payable by Shareholder as a result of the Company's net income before taxes for
the portion of the calendar year 2002 before the Closing ("Shareholder's 2002
Tax Liability").
(b) Shareholder shall prepare and deliver to the
Purchaser within 60 days after the Closing Date, a Closing Date Certification
determining in final form the taxable income of the Company from January 1, 2002
through the Closing Date, with such financial statements, work papers and
supplementary data as is necessary to confirm such income, together with a
reconciliation of the amount of the S Corporation distributions necessary to
cover applicable pass-through taxes on the Company's taxable income in 2002
prior to the Closing Date. In the event that the Purchaser concludes that any
matter in the Closing Date Certification is not accurate, the Purchaser shall,
within fifteen (15) days after its receipt of the Closing Date Certification,
deliver to the Shareholder a written notice of its objections (i) setting forth
in reasonable detail the nature of the objections and (ii) requesting all
additional information required by the Purchaser to verify the amounts set forth
in the Closing Date Certification. If the Purchaser timely delivers such a
written notice of objections pursuant to this Section, the Shareholder shall
provide the Purchaser with all information requested by the Purchaser in such
notice within fifteen (15) days after Shareholder's receipt of such notice. The
Purchaser and the Shareholder shall then use good faith efforts to jointly
resolve the Purchaser's objections within thirty (30) days after Shareholder's
receipt of Purchaser's notice of objections. In the event such good faith
efforts do not resolve the Purchaser's objection, the dispute will be resolved
pursuant to Section 1.3(d) of the Stock Purchase Agreement.
(c) The payment required to be made to the
Shareholder under Section 1.4(b) above shall be made within thirty (30) days
after the Purchaser's receipt of the Closing Date Certification, unless (i) the
Purchaser has timely delivered a notice of objection thereto pursuant to
subsection (b) above, in which case such payments shall be made within ten (10)
days after the resolution of such objections, or (ii) the Purchaser has agreed
in writing to the amounts set forth in the Closing Date Certification prior to
the end of such thirty (30) day period, in which case such payments shall be
made within ten (10) days after the date of such written agreement."
(b) The introductory paragraph of Article III of the Stock
Purchase Agreement is hereby revised to read in its entirety as follows:
"As a material inducement to Purchaser to execute this Agreement and
consummate the transactions contemplated hereby, the Company and the Shareholder
do hereby jointly and severally represent to the Purchaser that the following
representations and warranties are true and correct, except as otherwise set
forth in written disclosure schedules (the "Shareholder's Schedules") delivered
to Purchaser pursuant to this Article III, a copy of which is attached to this
Agreement as Exhibit C. The Shareholder's Schedules are numbered to correspond
to the various sections of this Article III setting forth certain exceptions to
the representations and warranties contained in this Article III and certain
other information required by this Agreement; provided, however, that any
information disclosed in any section of the Shareholder's Schedules shall be
deemed to be disclosed and incorporated in any other part of the Shareholder's
Schedules, and shall qualify the representations and warranties applicable
thereto."
(c) The following sentence is hereby added to the end of
Section 11.11 of the Stock Purchase Agreement:
"To the extent not paid or reimbursed by him prior to the
Closing, the Shareholder shall, concurrent with the payments under 1.4(c) above,
reimburse the Company the full amount of any fees or expenses paid by the
Company in connection with the transactions provided for in this Agreement and
shall pay all such fees and expenses incurred by the Company but not paid by the
Company prior to such date."
(d) Section 11.13, Release and Discharge of the Stock Purchase
Agreement, shall be modified to the extent that the release and discharge of the
Shareholder contained in Section11.13 of the Stock Purchase Agreement will not
apply to release the Company or the Purchaser from any of the obligations
identified within this Amendment to Stock Purchase Agreement.
2. Effect on Stock Purchase Agreement. The foregoing amendments are the
sole and exclusive amendments to the Stock Purchase Agreement made by the
Parties. The Parties hereby ratify and confirm the provisions of the Stock
Purchase Agreement as amended hereby.
IN WITNESS WHEREOF, the Parties have caused this Amendment to
be duly executed as of the day, month and year first above written.
ATTEST: STONEPATH LOGISTICS DOMESTIC SERVICES, INC.
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxx
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Secretary Authorized Executive Officer
ATTEST: UNITED AMERICAN ACQUISITIONS AND
MANAGEMENT, INC., D/B/A
"UNITED AMERICAN FREIGHT SERVICES, INC."
/s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxx
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Secretary Authorized Executive Officer
SHAREHOLDER:
/s/ Xxxxxxx Xxxxx
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