Exhibit 2.7
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the 19th day
of April, 2004 by and between the seller listed on Exhibit A attached hereto
(the "Seller"); and the buyer listed on Exhibit B attached hereto (the "Buyer").
WHEREAS, certain sellers, including Seller, and Buyer entered into a stock
purchase agreement dated as of the even date herewith (the "Initial Agreement"),
pursuant to which certain sellers are to sell to Buyer an aggregate of Five
Hundred Seventy Thousand Five Hundred Sixty Five shares (570,565) of Amalgamated
Technologies, Inc.'s (the "Company") common stock, par value $0.0001 per share.
WHEREAS, certain provisions of the Initial Agreement have been modified by
agreement among Seller and Buyer; and
WHEREAS, Seller and Buyer wish to amend and restate that portion of the Initial
Agreement as it pertains to them to reflect the changes agreed upon.
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF STOCK.
(a) Sale of Seller's Common Stock. Subject to the terms and conditions of
this Agreement, and in reliance upon the representations and warranties and
covenants contained herein, simultaneously herewith, Buyer has purchased from
Seller and Seller has sold to Buyer Sixty Two Thousand Nine Hundred Four
(62,904) shares (the "Seller's Common Stock") for the purchase price of Eleven
Thousand Five Hundred Ninety Six Dollars (USD$11,596).
(b) At any time and from time to time after the Closing, the Parties shall
duly execute, acknowledge and deliver all such further assignments, conveyances,
instruments and documents, and shall take such other action consistent with
the terms of this Agreement to carry out the transactions contemplated by this
Agreement.
2. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents
and warrants to the Buyer that:
(a) Seller is the record and beneficial owner of the Seller's Common
Stock and has sole management power over the disposition of the Seller's Common
Stock. The Seller's Common Stock are free and clear of any liens, claims,
encumbrances, and charges.
(b) The Seller's Common Stock have not been sold, conveyed, encumbered,
hypothecated or otherwise transferred by Seller except pursuant to this
Agreement.
(c) Seller has the legal right to enter into and to consummate the
transactions contemplated hereby and otherwise to carry out his obligations
hereunder. This Agreement constitutes the valid and binding obligation of
Seller.
3. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby warrants and
represents to the Sellers that:
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(a) Authority. Buyer has the requisite power and authority to enter
into and to consummate the transactions contemplated hereby and otherwise to
carry out its obligations hereunder.
(b) Investment Intent. Buyer is acquiring the Sellers' Common Stock for its
own account for investment purposes only and not with a view to or for
distributing or reselling any part thereof or interest therein, without
prejudice, however, to the Buyer's right, subject to the provisions of this
Agreement, at all times to sell or otherwise dispose of all or any part of such
Sellers' Common Stock in compliance with applicable federal and state securities
laws.
(c) Experience of Buyer. Buyer has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in the Sellers' Common Stock,
and has so evaluated the merits and risks of such investment.
(d) Ability of Buyer to Bear Risk of Investment. Buyer is able to bear the
economic risk of an investment in the Sellers' Common Stock and is able to
afford a complete loss of such investment.
(e) No Trading Market for Sellers' Common Stock. Buyer understands that
there is currently no trading market for the Sellers' Common Stock and that a
market may never develop.
(f) Access to Information. Buyer acknowledges that it has been afforded (i)
the opportunity to ask such questions as they have deemed necessary of, and to
receive answers from Sellers concerning the Sellers' Common Stock and the merits
and risks of investing in the Sellers' Common Stock; (ii) access to information
about the Company and the Company's financial condition, results of operations,
business, properties, management and prospects sufficient to enable them to
evaluate his investment in the Sellers' Common Stock; and (iii) the opportunity
to obtain such additional information which the Sellers possesses or can acquire
without unreasonable effort or expense that is necessary to make an informed
investment decision with respect to the Sellers' Common Stock.
(g) Reliance. Buyer understands and acknowledges that (i) the Sellers'
Common Stock are being offered and sold to them without registration under the
Securities Act in a transaction that is exempt from the registration provisions
of the Securities Act, (ii) the availability of such exemption, depends in part
on, and that Sellers will rely upon the accuracy and truthfulness of, the
foregoing representations and Buyer hereby consents to such reliance, and (iii)
that the certificates representing the Sellers' Common Stock may bear the
appropriate legend stating the restrictions on the resale and transfer of the
Sellers' Common Stock.
4. INDEMNIFICATION.
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(a) Obligation of Seller to Indemnify. Seller agrees to indemnify,
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defend and hold harmless Buyer (and its directors, officers, employees,
affiliates, stockholders, debenture holders, agents, attorneys, successors and
assigns) from and against all losses, liabilities, damages, deficiencies, costs
or expenses (including interest, penalties and reasonable attorneys' and
consultants' fees and disbursements) (collectively, "Losses") based upon,
arising out of or otherwise in respect of any (i) inaccuracy in any
representation or warranty of the Seller contained in this Agreement or in the
Exhibits hereto or (ii) breach by the Seller of any covenant or agreement
contained in this Agreement.
(b) Obligation of Buyer to Indemnify. Buyer agree to indemnify, defend and
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hold harmless Sellers (and its directors, officers, employees, affiliates,
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stockholders, agents, attorneys, successors and assigns) from and against any
Losses based upon, arising out of or otherwise in respect of any (i) inaccuracy
in any representation or warranty of Buyer contained in this Agreement or in the
Exhibits hereto or (ii) breach by Buyer of any covenant or agreement contained
in this Agreement.
(c) Notice and Opportunity to Defend. (a) Promptly after receipt by any
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Person entitled to indemnity under this Agreement (an "Indemnitee") of notice of
any demand, claim or circumstances which, with the lapse of time, would or might
give rise to a claim or the commencement (or threatened commencement) of any
action, proceeding or investigation (an "Asserted Liability") that may result in
a Loss, the Indemnitee shall give notice thereof (the "Claims Notice") to any
other party (or parties) who is or may be obligated to provide indemnification
pursuant to Section 4 (a) or 4 (b) (the "Indemnifying Party"). The Claims
Notice shall describe the Asserted Liability in reasonable detail and shall
indicate the amount (estimated, if necessary and to the extent feasible) of the
Loss that has been or may be suffered by the Indemnitee.
(d) The Indemnifying Party may elect to compromise or defend, at its own
expense and by its own counsel, any Asserted Liability. If the Indemnifying
Party elects to compromise or defend such Asserted Liability, it shall within 30
days after the date the Claims Notice is given (or sooner, if the nature of the
Asserted Liability so requires) notify the Indemnitee of its intent to do so,
and the Indemnitee shall cooperate, at the expense of the Indemnifying Party, in
the compromise of, or defense against, such Asserted Liability. If the
Indemnifying Party elects not to compromise or defend the Asserted Liability,
fails to notify the Indemnitee of its election as herein provided or contests
its obligation to indemnify under this Agreement, the Indemnitee may pay,
compromise or defend such Asserted Liability and all reasonable expenses
incurred by the Indemnitee in defending or compromising such Asserted Liability,
all amounts required to be paid in connection with any such Asserted Liability
pursuant to the determination of any court, governmental or regulatory body or
arbitrator, and amounts required to be paid in connection with any compromise or
settlement consented to by the Indemnitee, shall be borne by the Indemnifying
Party. Except as otherwise provided in the immediately preceding sentence, the
Indemnitee may not settle or compromise any claim over the objection of the
Indemnifying Party. In any event, the Indemnitee and the Indemnifying Party may
participate, at their own expense, in (but the Indemnitee may not control) the
defense of such Asserted Liability. If the Indemnifying Party chooses to defend
any claim, the Indemnitee shall make available to the Indemnifying Party any
books, records or other documents within its control that are necessary or
appropriate for such defense.
5. FINDERS FEE. As soon as practicable after the execution of this
Agreement, Seller shall transfer to Xxxxxxx Xxxxxxx, Inc. ("Xxxxxxx") Thirty
Eight Thousand Eight Hundred Eighty Eight (38,888) shares of the Company's
common stock, which shares represent a finders fee owed to Xxxxxxx for procuring
the transactions contemplated herein.
6. MISCELLANEOUS.
(a) Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
heirs, legal representatives, successors and assigns of the parties.
(b) Governing Law/Venue. This Agreement shall be governed by and
construed under the laws of the State of New York as applied to agreements
entered into and to be performed entirely within New York. Any dispute or
controversy concerning or relating to this Agreement shall be exclusively
resolved in the federal or state courts located in the City, County and State of
New York.
(c) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(d) Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(e) Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or sent by
overnight delivery by a nationally recognized overnight courier upon proof of
sending thereof and addressed to the party to be notified at the address
indicated for such party above and on Schedule A attached hereto, or at such
other address as such party may designate by written notice to the other
parties.
(f) Expenses. Each of the parties shall bear its own costs and
expenses incurred with respect to the negotiation, execution, delivery, and
performance of this Agreement.
(g) Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of Sellers and Buyer.
(h) Entire Agreement. This Agreement represents and constitutes
the entire agreement and understanding between the parties with regard to the
subject matter contained herein All prior agreements, understandings and
representations are hereby merged into this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed, or caused to be executed
on their behalf by an agent thereunto duly authorized, this Agreement as of the
date first above written.
SELLER:
/s/ Francois Parenteau
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Francois Parenteau
BUYER:
XXXXXX MANAGEMENT LLC
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Managing Member
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EXHIBIT A
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NUMBER OF SELLERS'
NAME OF SELLERS COMMON STOCK SOLD
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Francois Parenteau
1180 Avenue of the Americas, 62,904
Xxxxx 0000
Xxx Xxxx, XX 00000
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EXHIBIT B
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NUMBER OF SELLERS'
NAME OF BUYER COMMON STOCK PURCHASED
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Xxxxxx Management LLC 62,904
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