STOCK PURCHASE AGREEMENT
Exhibit
2.1
THIS
STOCK PURCHASE AGREEMENT (the “Agreement”) is made as of September 1st,
2007,
by and among The Amacore Group, Inc., a Delaware corporation (“AGI” or the
“Buyer”), JRM Benefits Consultants, LLC (the “Company”) and the stockholders of
the Company listed on the signature page hereto (collectively, the
“Stockholders”).
Background
The
Stockholders own all of the stock interests of the Company. The Stockholders
wish to sell the Shares (as defined below) and AGI wishes to purchase from
the
Stockholders the Shares.
NOW,
THEREFORE, the parties, intending to be legally bound hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and in consideration of the mutual covenants contained herein
agree
as follows:
1. Definitions.
For
convenience, certain terms used in more than one part of this Agreement are
defined below (such terms as well as any other terms defined elsewhere in this
Agreement shall be equally applicable to both the singular and plural forms
of
the terms defined).
“Adjustment
Date” means the date that is eighteen (18) months following the Closing (as
defined in paragraph 3 below) of this transaction.
“Buyer’s
Common Stock” means the Buyer’s Class A common stock, $.001 par value per
share.
“Charter
Documents” means an entity’s certificate or articles of incorporation,
certificate defining the rights and preferences of securities, articles of
organization, general or limited partnership agreement, certificate of limited
partnership, joint venture agreement or similar document governing the
entity.
“Contract”
means any written or oral contract, agreement, lease, instrument or other
commitment that is binding on any person or its property under applicable
law.
“Court
Order” means any judgment, decree, injunction, order or ruling of any federal,
state, local or foreign court or governmental or regulatory body or authority
that is binding on any person or its property under applicable law.
“Default”
means (a) a breach, default or violation, (b) the occurrence of an event that
with or without the passage of time or the giving of notice, or both, would
constitute a breach, default or violation or (c) with respect to any Contract,
the occurrence of an event that with or without the passage of time or the
giving of notice, or both, would give rise to a right of termination,
renegotiation or acceleration.
“Encumbrances”
means any lien, mortgage, security interest, pledge, restriction on
transferability, defect of title or other claim, charge or encumbrance of any
nature whatsoever on any property or property interest.
“Law”
means any statute, law, ordinance, regulation, order or rule of any federal,
provincial, state, local, or other governmental or quasi-governmental agency
or
body, including those covering, energy, transportation, record keeping, zoning,
antitrust, wage and hour, and price and wage control matters.
“Liability”
means any direct or indirect liability, indebtedness, obligation, expense,
claim, loss, damage, deficiency, guaranty or endorsement of or by any person,
absolute or contingent accrued or unaccrued, due or to become due, liquidated
or
unliquidated.
“Litigation”
means any lawsuit, action, arbitration, administrative or other proceeding,
criminal prosecution or governmental investigation or inquiry.
“Material
Adverse Effect” means any event, circumstance, change, occurrence or effect
(collectively, “Events”) that, individually or taken together with all other
Events, has or would be reasonably anticipated to have in the future a material
and adverse effect upon or change in the, assets, liabilities, financial
condition or operating results of the Company and its subsidiaries, taken as
a
whole, or the business.
“Shares”
means all of the issued and outstanding stock interests of the
Company.
“Regulation”
means any statute, law, ordinance, regulation, order or rule of any federal,
state, local, foreign or other governmental agency or body or of any other
type
of regulatory body.
2. Purchase
and Sale of Shares.
2.1 At
the
Closing (as defined below), the Buyer shall deliver or arrange for the delivery
of one-hundred thousand (100,000) shares of the Buyer’s Class A common stock
which, for purposes of this Agreement, is valued at $5.00 per share, to each
of
the Stockholders. The value of 100% of the Stockholders shares is, for purposes
of this Agreement, $1,000,000. (The shares to be issued to the Stockholders
shall, collectively, be deemed the “Purchase Price.”)
2.2 Share
Adjustment.
Eighteen (18) months from the date of Closing, the Buyer and Stockholders shall,
if necessary, adjust the shares issued to the Stockholders at the Closing as
follows:
(a) The
per
share value as described in subparagraph 2.1 above shall be restated so as
to
reflect the average trading price of Buyer’s shares as quoted on the OTC BB or
such other exchange or quotation system upon which the Buyer’s common stock is
in trading for the immediate preceding 30-day period. If the average trading
price as so determined is below $5.00 per share, but not less than $2.00 per
share, the Stockholders shall be issued such additional shares as may be
necessary so that the aggregate number of shares issued to the Stockholders
has
a value equal to $1,000,000 as of the date of such determination.
(b) In
the
event Buyer’s shares have an average trading price as determined by subparagraph
2.2(a) of $5.00 or in excess of $5.00 per share, no adjustment shall be made
in
the amount of shares previously issued to Stockholders which issuance shall
be
deemed final and not subject to further adjustment.
(c) In
the
event Buyer’s shares have an average trading price of less than $2.00 as deemed
in accordance with procedures set forth in subparagraph 2.2(a), Buyer shall
have
the option to terminate this transaction in which event Buyer shall return
to
the Stockholders, properly endorsed for transfer, 100% of the shares previously
delivered by Stockholders to Buyer; and the Stockholders shall deliver to Buyer
80% of the shares previously delivered to the Stockholders as part of the
Purchase Price.
2.3 Budget
and Projections.
Attached hereto as Schedules
2.3(a) and 2.3(b),
respectively, (i) a budget for the balance of 2007 and calendar year 2008 (the
“Budget); and (ii) revenue and income statement projections for the balance
of
2007 and calendar year 2008 (the “Projections”). The Company and its
Stockholders represent that these Schedules have been prepared in good faith
based upon the best information available to the Company’s management and the
management does not have any reason to believe that (i) it will not be able
to
live within the Budget or meet its Projections.
3. Closing.
The
closing of the purchase and sale of the Shares (the “Closing”) shall be held on
September 1st , 2007 at the offices of The Amacore Group, Inc., 000
Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxx, XX 00000. The date of the Closing
shall be deemed the “Closing Date.”
3.1 Closing
Deliveries of the Buyer.
At the
Closing, the Buyer shall deliver to each of the Stockholders certificates or
a
copy of Buyer’s letter to its transfer agent authorizing the agent to deliver to
each of the Stockholders one-hundred thousand (100,000) shares of AGI’s Class A
Common Stock. In addition, the Buyer shall deliver to the Stockholders the
signed Escrow Agreement as referred to in paragraph 7 below and such other
documents, if any, as the parties may deem to be necessary to carry out the
intent of this Agreement. The Stockholders acknowledge that said shares will
be
deemed “restricted” securities under Rule 144. Each of the Stockholders agree
that at the end of the restrictive period, they will agree to sell such shares
only in accordance with the then existing Rule 144 selling formula for shares
held more than one year but less than two years. Unless otherwise directed
by
AGI, Stockholders agree to sell such shares only through Mr. Xxx Xxxxxxx, a
registered broker, or through such other broker or brokerage company designated
by AGI.
3.2 Closing
Deliveries of the Stockholders.
At the
Closing, the Stockholders shall deliver to the Buyer certificates for the Shares
duly endorsed for transfer or accompanied by an executed stock power,
transferring such Shares to Buyer. The shares to be delivered to the Buyer
shall
equal 100% of the issued and outstanding shares of the Company. In addition,
the
Stockholders shall deliver to the Buyer the executed Escrow Agreement as
referred to in paragraph 7 below and such other documents, if any, as the
parties may deem to be necessary to carry out the intent of this Agreement.
Included within the foregoing will be any consent necessary from person, firms
and/or corporations in contract with the Company which consents are required
pursuant to the terms of said contractual arrangements in transactions such
as
the one contemplated by this Agreement (the sale of 100% of the Company’s issued
and outstanding capital stock).
4. Representations
and Warranties of the Company.
The
Company hereby represents and warrants as of the date hereof to the Buyer as
follows:
4.1 Corporate
Status.
The
Company is a New Jersey Limited Liability Company duly organized, validly
existing and in good standing under the Laws of the jurisdiction in which it
was
incorporated, and is qualified to do business as a foreign corporation in any
jurisdiction where such corporation is required to be so qualified. The Company
has delivered to the Buyer current, correct and complete copies of its Charter
Documents and bylaws, both of which are in full force and effect as of the
date
hereof,
and its
minute book along with a Certificate of Good Standing in the state in which
the
Company is incorporated and such other states in which it is authorized to
do
business.
4.2 Authorization.
The
Company has the requisite power and authority to carry on its business as now
conducted. The Company has the requisite power and authority to execute and
deliver any of the respective transaction documents to which it is or will
at
the Closing become a party and to perform the transactions to be performed
by
it. Such execution, delivery and performance have respectively been duly
authorized by all necessary corporate action with respect to the Company. Each
transaction document executed and delivered by the Company as of the date hereof
has been duly executed and delivered by the Company and constitutes a valid
and
binding obligation of the Company, enforceable against the Company in accordance
with its terms.
4.3 Consents
and Approvals.
Except
for any filings, consents or approvals specified on Schedule
4.3 (the
“Required
Consents”),
neither the execution and delivery by the Company of the transaction documents
to which it is or will be a party, nor the performance of the transactions
performed or to be performed by the Company, will require any filing, consent,
renegotiation or approval, constitute a default or cause any payment obligation
to arise under: (a) any Law or Court Order to which the Company is subject;
(b)
the Charter Documents or bylaws of the Company; or (c) any material Contract,
Governmental Permit or other document to which the Company is a party by which
the properties or other Assets of the Company may be subject.
4.4 Capitalization
and Stock Ownership.
The
stock interests of the Company is set forth on Schedule
4.4
(all
outstanding membership interests of the Company,
the “Shares”). Except as set forth on Schedule
4.4
hereto,
there are no existing options, warrants, calls, commitments or other rights
of
any character (including conversion or preemptive rights) relating to the
acquisition of any issued or unissued capital stock or other securities of
the
Company. All of the Shares are duly and validly authorized and issued, fully
paid and non-assessable. The Stockholders are the record and sole beneficial
owners of all of the Shares in the respective amounts specified on Schedule
4.4,
free
and clear of all Encumbrances. Upon completion of the transactions at the
Closing, the Buyer will receive valid title to all of the Shares, free and
clear
of all Encumbrances, which shares will represent 100% of the issued and
outstanding shares of the Company as of the Closing.
4.5 Title
to Assets and Related Matters.
The
Company has good and marketable title to, valid leasehold interests in or valid
licenses to use, all of the assets, free from any Encumbrances except: (a)
those
specified in Schedule
4.5;
(b)
liens for taxes not yet due; and (c) with respect to real property; (i) minor
imperfections of title, if any, none of which is substantial in amount,
materially detracts from the value or impairs the use of the property subject
thereto, or impairs the operations of the Company and (ii) zoning laws and
other
land use restrictions that do not impair the present use of the property subject
thereto. All tangible personal property included in the assets are suitable
for
the purposes for which they are used, in good working condition, reasonable
wear
and tear excepted and are free from any known defects.
4.6 Financial
Statements.
The
Company has delivered to Buyer correct and complete copies of the Company’s
unaudited financial statements consisting of a balance sheet as of the end
of
each year from 2005 through and including 2007 and
the
related statements of income for the periods then ended (the “Unaudited
Financial Statements”),
copies of which are attached as Schedule
4.6.
All such
Unaudited Financial Statements are referred to herein collectively as the
“Financial
Statements.”
The
Financial Statements are consistent in all material respects with the books
and
records of the Company, and there have not been and will not be any material
transactions that have not been recorded in the accounting records underlying
such
Financial Statements. The Financial Statements present fairly the financial
position, results of operations, cash flows and Assets and Liabilities of the
Company as of the dates thereof, and for the periods then ended, subject to
normal recurring year-end adjustments and the absence of footnote disclosure
in
the case of the Unaudited Financial Statements.
4.7 Real
Property.
Schedule
4.7
accurately describes all real estate used in the operation of the Business
as
well as any other real estate possessed or leased by the Company and the
improvements (including buildings and other structures) located on such real
estate (collectively, the “Real Property”), and lists any leases under which any
such Real Property is possessed (the “Real Estate Leases”). All of the Real
Property (a) is usable in the ordinary course of business and is in good
operating condition and repair and (b) conforms with any applicable Laws, except
as set forth in paragraph 4.5 above. Each Real Estate Lease is in full force
and
effect and has not been assigned, modified, supplemented or amended and the
Company is not in default under any such lease.
4.8 Certain
Personal Property.
Schedule
4.8
sets
forth a complete fixed asset schedule, describing all items of tangible personal
property with an individual carrying value of at least $10,000 that were
included in the Company Balance Sheet. No person other than the Company owns
any
vehicles, equipment or other tangible assets located on the Real Property that
is necessary for the operation of the business. The assets are suitable for
the
purposes for which such assets are currently used or are held for use, and
are
in good working condition, subject to normal wear and tear.
4.9 Liabilities.
The
Company has no Liabilities, other than the Liabilities specified on Schedule
4.9.
Amacore
will service the current Credit Card debt and Line of Credit debt of
approximately $227,676.00 through the period ending August 31st
2008. If
JRM meets its’ projected gross revenues for August 31st, 2008 of $1,080,220.00,
Amacore will continue to service the debt, until paid in full.
4.10 Taxes.
(a) The
Company has timely filed all material Tax Returns and extensions required to
be
filed for all taxable years and periods and through the date hereof. All such
Tax Returns were correct and complete in all material respects. All material
Taxes owed by the Company have been paid. There are no liens for Taxes on any
of
the Assets (except for liens for Taxes not yet due and payable).
(b) The
Company has properly withheld and timely paid over to the proper taxing
authority all Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor, creditor,
shareholder, member or other third party and has complied with all information
reporting and backup withholding requirements, including maintenance of required
records with respect thereto in connection with any amounts paid to any
employee, independent contractor, creditor or third party.
4.11 Legal
Proceedings and Compliance with Law.
(a) Except
as
set forth on Schedule
4.11(a),
there
is no Litigation that is pending or, to the Company’s knowledge, threatened in
writing against the Company (i) against or involving directly or indirectly
its
business or (ii) challenging any of the transactions that would have a Material
Adverse Effect on the business.
(b) Except
as
set forth on schedule
4.11(b),
the
Company is in compliance with all laws applicable to the business as presently
conducted.
4.12 Contracts.
(a) Schedule
4.12 lists
all
Contracts of the following types to which the Company is a party or by which
it
is bound, including all Contracts that may be terminated by the Company on
less
than 30 days’ notice without any material Liability and any Contract under which
the executory obligation of the Company:
(i) Contracts
with any present or former shareholder, director, officer, employee, partner
or
consultant of the Company thereof, or any other Contract calling for the payment
of money by the Company to any third party in exchange for
services;
(ii) Contracts
for the future purchase of, or payment for, supplies or products, or for the
lease of an asset from or the performance of services by a third party, or
any
Contracts for the sale of products with respect to any one supplier or other
party;
(iii) Contracts
to sell or supply products or to perform services;
(iv) Contracts
to lease to or to operate for any other party any asset;
(v) Any
license, franchise, distributorship or sales agency agreement or other similar
agreements, including those that relate in whole or in part to any software,
technical assistance or other know-how used in the past 24 months.
(vi) Any
notes, debentures, bonds, conditional sale agreements, equipment trust
agreements, letter of credit agreements, reimbursement agreements,
loan/repayment agreements or other Contracts for the borrowing, repayment or
lending of money, agreements or arrangements for a line of credit or for a
guarantee of, or other undertaking in connection with, the indebtedness of
the
Company;
(vii) Contracts
for any capital expenditure or leasehold improvement;
(viii) Any
Contracts under which any encumbrances exist with respect to any assets;
and
(ix) Any
other
Contracts.
(b) The
Company has delivered to Buyer complete and correct copies of all written
Contracts, together with all amendments thereto, and accurate descriptions
of
all material terms of all oral Contracts, set forth or required to be set forth
on Schedule
4.12.
4.13 Employee
Relations.
Except
as set forth on Schedule
4.13,
the
Company: (a) is not a party to, involved in or, to the Company’s knowledge,
threatened by any labor dispute or unfair labor practice charge; (b) is not
currently negotiating any collective bargaining agreement; and (c) has not
made
arrangements with any labor union or employee association or made commitments
to
or conducted negotiations with any labor union or employee association with
respect to any future agreements. The Company has delivered to Buyer a complete
and correct list of the names and salaries, bonus and other cash compensation
of
all employees (including officers) of the Company whose total cash compensation
for 2006 exceeded, or whose total compensation for 2007 is expected to exceed,
$40,000.
4.14 Additional
Information.
Schedule 4.14 accurately
lists the following:
(a) the
names
of all officers and directors of the Company;
(b) the
names
and addresses of every bank or other financial institution in which the Company
maintains an account (whether checking, saving or otherwise), lock box or safe
deposit box, and the account numbers and names of persons having signing
authority or other access thereto;
(c) the
names
of all persons authorized to borrow money or incur or guarantee indebtedness
on
behalf of the Company;
(d) all
names
under which the Company has conducted any part of the Business or that it has
otherwise used at any time during the past three years; and
(e) all
contracts to which the Company is a party, including leasehold interests;
employment agreements; equipment leases, consulting agreements; options,
warrants on like agreements relating to the purchase and/or sale of the
Company’s stock; insurance (collectively the “Agreements”) all of which are
identified in Schedule
4.14 and
annexed hereto.
4.15 Accuracy
of Information.
The
representations and warranties made or contained in this Agreement, the
schedules and exhibits attached hereto and the certificates and statements
executed or delivered in connection herewith, and the information concerning
the
business of the Company delivered to the Buyer in connection with or pursuant
to
this Agreement when taken together, including any additional disclosures set
forth in Schedule
4.15,
do not
contain any untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary in order to make such
representations, warranties or other material not misleading. No event has
occurred and nothing material has come to the attention of the Company that
would indicate that any of such information (together with any written updates
thereof furnished by the Company) is not true and correct in all material
respects as of the date hereof. There are no facts known to the Stockholders
that currently or would have a Material Adverse Effect and that have not been
specifically disclosed herein or in a schedule furnished herewith, other than
economic conditions affecting the industry of the Company generally.
The
Financial Statement attached hereto as Schedule
4.6
are true
and accurate as of the date specified on each Financial Statement.
5. Representations
and Warranties of the Stockholders.
5.1 The
Stockholders hereby, jointly and severally represent and warrant to the Buyer
as
follows:
(a) this
Agreement constitutes a legal, valid and binding obligation of each of the
Stockholders, enforceable against each Stockholder in accordance with its terms;
(b) neither
the execution and delivery by each of the Stockholders of this Agreement, nor
the performance of the transactions to be performed by each of the Stockholders
hereunder, will require any filing, consent or approval by a third party or
constitute a Default under (i) any Regulation or Court Order to which each
of
the Stockholders is subject, or (ii) any Contract or other document to
which each of the Stockholders is a party or by which the properties or other
assets of each of the Stockholders may be subject;
(c) the
Stockholders are the record and sole beneficial owners of the Shares, free
and
clear of all Encumbrances, which shares will represent 100% of issued and
outstanding shares of the Company as of the Closing;
(d) upon
completion of the transactions at the Closing, the Buyer shall receive valid
title to the Shares, free and clear of all Encumbrances, other than those
imposed by applicable securities laws;
(e) the
Shares are not subject to any pre-emptive rights or rights of first refusal,
and
neither the execution and delivery by each of the Stockholders violates any
pre-emptive rights or rights of first refusal enforceable against, by statute
or
otherwise, the Shares; and
(f) the
representations of the Company are true and accurate as of the date hereof
and
will be true and accurate as of the Closing.
5.2 Accredited
Investor Status.
The
Stockholders hereby, jointly and severally, represent and warrant to the Buyer
as follow:
(a) each
of
the Stockholders represents that he or she has sufficient knowledge and
experience in financial and business matters that he or she is capable of
evaluating the merits and risks of the acquisition of Buyer Shares and also
that
he/she is an “accredited investor” as that term is defined in Regulation D of
the Securities Act;
(b) such
Stockholder is aware of the applicable limitations under the Securities Act
relating to a subsequent sale, transfer, pledge, mortgage, hypothecation, gift,
assignment or other encumbrance of the Buyer Shares; and
(c) such
Stockholder realizes that the Buyer is relying on the validity of these
representations and agreements contained herein and in the other Transaction
Documents in issuing the Buyer Shares to the Stockholder without registration
under the Securities Act or any state securities laws.
6. Representations
and Warranties of Buyer.
Buyer
hereby represents and warrants to the Stockholders as follows:
6.1 Enforceability.
(a)
This Agreement constitutes a legal, valid and binding obligation of Buyer,
enforceable against the Buyer in accordance with its terms; and (b) neither
the
execution and delivery by the Buyer of this Agreement, nor the performance
of
the transactions to be performed by the Buyer hereunder, will require any
filing, consent or approval by a third party or constitute a Default under
(i)
any Regulation or Court Order to which the Buyer is subject, or (ii) any
Contract or other document to which the Buyer is a party or by which the
properties or other assets of the Buyer may be subject.
6.2 Accredited
Investor Status.
(a) Buyer
is
aware of the applicable limitations under the Securities Act of 1933, as amended
(the “Securities Act”), relating to the Shares of common stock to be purchased
(the “Shares”) and that the Shares have not been registered under the Securities
Act, and that such securities cannot be sold unless they are subsequently
registered under the Securities Act and applicable state securities laws or
an
exemption from such registration is available.
(b) Buyer
is
acquiring the Closing Shares solely for investment purposes, with no present
intention of distributing or reselling any of the Closing Shares.
(c) Buyer
has
such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of the acquisition of the
Shares.
(d) Buyer
acknowledges that the Company is relying on the validity of the Buyer's
representations and agreements contained herein in granting the Shares to it
without registration under the Securities Act.
7. Escrow
Agreement.
At the
Closing, the parties will execute and exchange the Escrow Agreement,
substantially in the form annexed hereto as Exhibit
1, it
being
the intent of the parties that the Buyer’s and the Stockholders’ shares be held
in Escrow for a term of eighteen (18) months, or such shorter period as may
be
mutually agreed upon, in order to assure the Buyer’s and the Stockholders’
ability to fulfill the intent as expressed in paragraph 2. At or before the
Closing, the parties will mutually agree upon the Escrow Agent to be named
in
said Agreement.
8. Indemnification.
8.1 By
the
Stockholders.
From
and after the Closing Date, the Stockholders, shall jointly and severally
indemnify and hold harmless the Buyer and (if any) its successors and assigns,
officers, directors, employees, stockholders, agents, Affiliates and any person
who controls any of such persons within the meaning of the Securities Act (each,
an “Indemnified Buyer Party”) from and against any liabilities, claims, demands,
judgments, losses, costs, damages or expenses whatsoever (including reasonable
attorneys’, consultants’ and other professional fees and disbursements, nature
and description incurred by such Indemnified Buyer Party in connection
therewith) (collectively, “Damages”) that such Indemnified Buyer Party may
sustain, suffer or incur and that result from, arise out of or relate to: (a)
any breach of any of the respective representations, warranties, covenants
or
agreements of the Company or any Stockholder; (b) any
taxes
of the Company with respect to any tax period or partial period ending on or
before the Closing Date (or for any tax period or partial period beginning
before and ending after the Closing Date to the extent allocable to the portion
of such period beginning before and ending on the Closing Date) and (c) for
any
undisclosed Liabilities of the Business not set forth on Schedule 4.9(a) hereto.
8.2 By
the
Stockholders relating to the Shares.
From
and after the Closing Date, each Stockholder shall indemnify and hold harmless
each Indemnified Buyer Party from and against any Damages that such Indemnified
Buyer Party may sustain, suffer or incur and that result from, arise out of
or
relate to any breach of any of such Stockholder’s representations and warranties
in Section 5.
8.3 By
the
Buyer.
From
and after the Closing Date, the Buyer shall indemnify and hold harmless the
Stockholders and their respective successors and assigns (if any), and their
respective officers, directors, employees, stockholders, agents, Affiliates
and
any Person who controls any of such Persons within the meaning of the Securities
Act or the Exchange Act (each, an “Indemnified Selling Party”) from and against
any Damages that such Indemnified Selling Party may sustain, suffer or incur
and
that result from arise out of or relate to: (a) any breach of any of the
respective representations, warranties, covenants or agreements of the Buyer
contained in this Agreement.
8.4 Claims
Period.
Any
claim for indemnification under this Section 8 shall be made by giving a notice
to the other party on or before the second anniversary of the Closing Date
or
the claim under this Section 8 shall be invalid.
8.5 Third
Party Claims.
An
Indemnified Party that desires to seek indemnification under any part of this
Section 8 with respect to any actions, suits or other administrative or judicial
proceedings (each, an “Action”) that may be instituted by a third party shall
give each Indemnitor prompt notice of a third party’s institution of such
Action. After such notice, any Indemnitor may, or if so requested by such
Indemnified Party, any Indemnitor shall, participate in such Action or assume
the defense thereof, with counsel satisfactory to such Indemnified Party;
provided, however, that such Indemnified Party shall have the right to
participate at its own expense in the defense of such Action; and provided,
further, that the Indemnitor shall not consent to the entry of any judgment
or
enter into any settlement, except with the written consent of such Indemnified
Party (which consent shall not be unreasonably withheld). Any failure to give
prompt notice under this Section 8.5 shall not bar an Indemnified Party’s right
to claim indemnification under this Section 8, except to the extent that an
Indemnitor shall have been harmed by such failure.
8.6 Effect
of Investigation or Knowledge.
Any
claim by a Indemnified Buyer Party for indemnification shall not be adversely
affected by any investigation by or opportunity to investigate afforded to
the
Buyer. Each Party shall be deemed to be relying on the representations and
warranties of any other Party set forth herein, regardless of any investigation
or audit conducted before or after the Closing Date or the decision of any
Party
to consummate the Transactions contemplated hereby and complete the
Closing.
8.7 Contingent
Claims.
Nothing
herein shall be deemed to prevent an Indemnified Party from making a claim
hereunder for potential or contingent claims or demands provided the Claim
Notice sets forth the specific basis for any such potential or contingent claim
to the extent then
feasible and the Indemnified Party has reasonable grounds to believe that such
a
claim or demand may be made.
9. Employment
Agreements.
At the
Closing, the Buyer will enter into Employment Agreements with the parties named
on Schedule
9, substantially
in for form annexed hereto as Exhibit
2.
10. General
Matters.
10.1 Delivery
of Documents.
All
documents referred to in this Agreement to be delivered between the parties
shall be delivered two weeks prior to the Closing Date.
10.2 Conduct
of Business Prior to Closing.
Following the execution of this Agreement, and prior to the Closing Date, the
Company shall conduct its business in the same manner as it has been conducted
prior to the execution of this Agreement and agree to immediately notify Buyer
of any material change or contemplated change in its business prior to the
occurrence of same. At the Closing, the Company and the Stockholders shall
deliver to Buyer certification that all of their representations and warranties
made or contained in this Agreement, the schedules and exhibits attached hereto
and the certificates and statements executed or delivered in connection
herewith, and the information concerning the Business of the Company delivered
to Buyer in connection with or pursuant to this Agreement when taken together,
including any additional disclosures set forth in Schedule
10.2,
do not
contain any untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary in order to make such
representations, warranties or other material not misleading. No event has
occurred and nothing material has come to the attention of the Company that
would indicate that any of such information (together with any written updates
thereof furnished by the Company) is not true and correct in all material
respects as of the date hereof. There are no facts known to the Company that
currently or may in the future have a material adverse effect and that have
not
been specifically disclosed herein or in a schedule furnished herewith, other
than economic conditions affecting the industry of the Company
generally.
10.3 Contents
of Agreement.
This
Agreement sets forth the entire understanding of the parties hereto with respect
to the transactions contemplated herein and supersedes all prior agreements
or
understandings among the parties regarding those matters.
10.4 Amendment,
Parties in Interest, Assignment, Etc.
This
Agreement may be amended, modified or supplemented only by a written instrument
duly executed by each of the parties hereto. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective heirs,
legal representatives, successors and permitted assigns of the parties hereto.
No party hereto shall assign this Agreement or any right, benefit or obligation
hereunder, except that Buyer may assign its rights and obligations hereunder
provided that it remains obligated to fulfill its obligations hereunder.
10.5 Interpretation.
Unless
the context of this Agreement clearly requires otherwise, (a) references to
the plural include the singular, the singular the plural, the part the whole,
(b) ”or” has the inclusive meaning frequently identified with the phrase
“and/or” and (c) ”including” has the inclusive meaning frequently
identified with the phrase “but not limited to.” The section and other headings
contained in this Agreement are for reference purposes only and shall not
control or affect the construction of this Agreement or the interpretation
thereof in any respect. Section, subsection, schedule and exhibit references
relate to this Agreement unless otherwise specified. Each accounting term used
herein that is not specifically defined herein shall have the meaning given
to
it under generally accepted accounting principles.
10.6 Governing
Law.
This
Agreement shall be construed and interpreted in accordance with the laws of
the
State of Florida, without regard to its provisions concerning conflict of
laws.
10.7 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
binding as of the date first written above, and all of which shall constitute
one and the same instrument. Each such copy shall be deemed an original,
and it shall not be neces-sary in making proof of this Agreement to produce
or
account for more than one such counterpart.
IN
WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of
the day and year first written above.
STOCKHOLDERS
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By:
/s/
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By:
/s/
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Name:
Xxxxx X. Xxxxxx
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Xxxxx
X. Read Jr.
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Title:
CEO
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By:
/s/
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JRM
BENEFITS CONSULTANTS, LLC
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Xxxxx
X. Xxxxxxxx
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By:
/s/
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Name:
Xxxxx
X. Xxxxxxxx
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Title:
Senior Vice President
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