EXHIBIT 2.3
AMENDMENT AND SUPPLEMENT
This letter, dated August 31, 2001, shall serve as an amendment and
supplement to the agreement, dated as of August 1, 2001 by and among BlueStone
Capital Corp. ("BlueStone") and HealthStar Corp., on the one hand, and Shochet
Securities, Inc. ("Shochet") and Shochet Holding Corp. ("Shochet Holding"), on
the other hand ("Agreement"). Capitalized terms used herein have the meanings
ascribed to them in the Agreement.
By their execution of this letter, the undersigned parties agree as
follows:
1. At Closing, BlueStone shall not be obligated to accept any Account
listed on SCHEDULE A hereto unless all amounts debited against or owed on such
Account have been eliminated prior to Closing through payment by the account
holder or write off by Shochet (I.E., an assumption of liability by Shochet to
BNY Clearing Services LLC ("BNY")). With respect to any amounts written down by
Shochet, Shochet shall retain the right to seek payment of such amounts from the
applicable account holder. Shochet shall indemnify and hold harmless BlueStone
for any such debit balance in the event BNY seeks to recover same from
BlueStone.
2. In addition to any other persons hired by BlueStone under Section
3.1 of the Agreement, at Closing, BlueStone shall offer employment to the
persons set forth on SCHEDULE B hereto ("Scheduled Persons"). Each such
Scheduled Person shall be employed at will by BlueStone. In the event that any
such Scheduled Person is terminated on or prior to October 15, 2001, Shochet
shall make severance payments to such Scheduled Person in accordance with its
currently existing severance policies.
3. Immediately following the Closing, Shochet Holding and Shochet shall
have the right ("Occupation Right") to occupy the 395 square feet of space
currently occupied by the current accounting operations of Shochet at 000 Xxxxx
Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx ("Space"). The Occupation Right shall be
for a term of three months and then on a month-to-month basis thereafter
terminable upon 30 days prior written notice. Shochet Holding shall pay
BlueStone a monthly occupation fee of $825 for each month the Space is occupied
by Shochet Holding and/or Shochet, payable in advance on the first day of each
month. Shochet Holding and Shochet acknowledge that they shall have only those
rights to the Space that are held by BlueStone and which may be legally afforded
by BlueStone to Shochet Holding and Shochet Securities. BlueStone makes no
representations to its rights to permit Shochet Holding or Shochet to occupy the
Space.
4. Shochet Holding shall be entitled to retain all ownership rights
with respect to the equipment listed on SCHEDULE C hereto ("Shochet Holding
Equipment"), which equipment is currently located in the Space. At such time as
Shochet Holding and Shochet vacate the Space,
such parties shall be entitled to retain physical possession of the Shochet
Holding Equipment and shall promptly remove the Shochet Holding Equipment from
the Space.
5. Section 2.1 of the Agreement is hereby amended in its entirety to
provide as follows:
"2.1. At the Closing, Shochet will transfer all of its right,
title and interest in the Accounts. All customer and operational
files, including customer account agreements, including, without
limitation, arbitration agreements, option agreements and margin
agreements, relating to the accounts, shall be retained by
Shochet; provided, however, that BlueStone shall be entitled to
access to any and all such files for inspection and/or copying
(including bulk copying) during regular business hours upon
reasonable notice to Shochet. Shochet shall not destroy or
dispose of any such files without the prior written consent of
BlueStone. In the event that BlueStone requires access to or
copies of any such files in connection with an audit by any
regulatory authority, Shochet shall accommodate BlueStone in
order to enable it to comply with such audit, without material
interference with Shochet's operations. Shochet will cause BNY
Clearing Services LLC to effect an electronic, negative transfer
of the Accounts to BlueStone on a tape-to-tape basis."
6. The parties shall cooperate following Closing to calculate accurate
and equitable allocations of all amounts payable with respect to the transferred
assets, such as rents and utilities, and shall promptly remit to the others the
monies reflected in such allocations.
7. Shochet has not obtained any of the Landlord Documents defined in
Section 5 and required under Section 25 of the Agreement, except for the Loan
Documents relating to the office space set forth on SCHEDULE D hereto.
Therefore, notwithstanding Section 5.1 of the Agreement, with respect to the
Shochet Leases for the properties where Shochet Persons operate or conduct
retail or institutional brokerage business for which Landlord Documents have not
yet been obtained, as of the Closing, Shochet shall not assign to BlueStone, and
BlueStone shall not assume the obligations of Shochet under, the Shochet Leases;
provided, however, that Shochet agrees to permit BlueStone to use the properties
under such Shochet Leases and BlueStone agrees to pay the monthly rental
payments provided for under the Shochet Leases directly to the lessor for as
long as BlueStone occupies such property in accordance with Section 5.1 of the
Agreement. BlueStone will send confirmation to Shochet of each payment sent by
BlueStone to the lessor within five (5) business days of each such payment. If
and when Shochet obtains the Landlord Documents for the remaining Shochet
Leases, then such Shochet Lease or Shochet Leases shall, if requested by
BlueStone, be assigned and assumed by BlueStone.
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8. Section 5.4 of the Agreement is hereby deleted. Notwithstanding the
foregoing, at the Closing, BlueStone shall pay to Shochet an amount equal to the
security deposits held by the landlords of the properties set forth on Schedule
D in the amount set forth on Schedule D. In addition, in the event Shochet
obtains all of the Landlord Documents relating to any of the other Shochet
Leases after the Closing and BlueStone elects to occupy such property, BlueStone
shall remit to Shochet an amount equal to the security deposit for such
property.
9. Notwithstanding Section 5.2 of the Agreement, with respect to the
Shochet Equipment Leases for the equipment located at Shochet's offices, Shochet
shall not assign to BlueStone, and BlueStone shall not assume the obligations of
Shochet under, the Shochet Equipment Leases; provided, however, that Shochet
agrees to permit BlueStone to use the equipment under the Shochet Equipment
Leases and BlueStone agrees to pay the monthly rental payments provided for
under the Shochet Equipment Leases directly to the lessor of the equipment for
the duration of the present terms of each of the Shochet Equipment Leases.
BlueStone will send confirmation to Shochet of each payment sent by BlueStone to
the equipment lessor within five (5) business days of each such payment.
10. Shochet and Shochet Holding, as applicable, shall deliver to
BlueStone, within 10 days of the Closing, all forms to be submitted to Network
Solutions, completed in all respects with respect to information to be provided
by Shochet and/or Shochet Holding, as necessary to cause the transfer of the
domain name "Xxxxxxx.xxx." Shochet shall also cooperate and assist BlueStone in
obtaining on a timely basis copies of all of Shochet's intellectual property
files relating to the intellectual property being transferred under the terms of
the Agreement from Xxxxx & Xxxxxxxx LLP, Xxxxxxx'x intellectual property counsel
of record.
11. Except as amended or supplement hereby, the provisions of the
Agreement shall remain in full force and effect.
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BLUESTONE CAPITAL CORP.
By:______________________________
HEALTHSTAR CORP.
By:_____________________________
SHOCHET SECURITIES, INC.
By:____________________________
SHOCHET HOLDING CORP.
By:___________________________
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