STOCK PURCHASE AGREEMENT
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.
1
“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 $12,500 and 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,
$1,025,000. (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.
2
(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).
3
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
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).
5
(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;
6
(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.
7
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.
8
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.
9
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
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 necessary in making proof of this Agreement to produce
or account for more than one such counterpart.
11
IN
WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of
the day and year first written above.
THE AMACORE GROUP, INC. | STOCKHOLDERS |
By:_____________________________ | By: /s/ Xxxxx X. Read Jr. |
Name:
|
Xxxxx
X. Read Jr.
|
Title:
|
|
By: /s/ Xxxxx X. Xxxxxxxx | |
JRM BENEFITS CONSULTANTS, LLC |
Xxxxx
X. Xxxxxxxx
|
By:_____________________________ | |
Name:
|
|
Title:
|
12