SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
Exhibit 2.8.2
SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT (this “Second Amendment”) is
made as of March 26, 2007, by and among PURE EARTH, INC., a Delaware corporation (“Buyer”),
XXXXX ECOLOGY OIL SALVAGE, INC., a New Jersey corporation (“Xxxxx”), REZULTZ, INCORPORATED,
a New Jersey corporation (“Rezultz”), MIDATLANTIC RECYCLING TECHNOLOGIES, INC., a Delaware
corporation (“MART” and, collectively with Xxxxx and Rezultz, the “Companies”), XXX
XXXXXX (“Mouser”) and XXXXXXX X. CALL (“Call” and, together with Mouser, the
“Seller”). Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Stock Purchase Agreement (defined below).
RECITALS
WHEREAS, Buyer, Seller, Xxxxx, Rezultz and MART are parties (directly or by joinder) to a
certain Stock Purchase Agreement dated as of February 13, 2007, as amended by a certain First
Amendment to Stock Purchase Agreement dated as of February 28, 2007 (as so amended, the “Stock
Purchase Agreement”); and
WHEREAS, Buyer, Seller, Xxxxx, Rezultz and MART desire to amend the Stock Purchase Agreement
as more fully set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions hereinafter
set forth and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1. Amendments.
(a) Section 3.1(a)(ii) of the Stock Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
(ii) Two Hundred Ten (210) days after the Closing Date, Buyer shall
issue to Seller an additional Three Hundred Fifteen Thousand (315,000)
shares of unregistered common stock of PEI (the “Additional PEI
Stock”), which Seller agrees not to sell, offer, transfer, agree to
transfer, assign, pledge, hypothecate or otherwise dispose of, directly or
indirectly, for a period of one year after the date of such issuance to
Seller.
(b) The second sentence of Section 8.3 of the Stock Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
From and after the date hereof, Buyer shall have the right to perform
diligence for a period commencing on the date hereof and continuing until
5:00 p.m. on the date which is the later of (i) March 29, 2007 or (ii) five
(5) business days following the date that the Parties have received all
regulatory approvals required under Environmental Laws in connection with a
change of ownership of the Companies (the “Due Diligence Period”).
(c) Section 8.7 of the Stock Purchase Agreement is hereby amended and restated in its entirety
to read as follows:
8.7 Delivery of Schedules. Buyer, Seller and the Companies
acknowledge and agree that the Schedules have not been prepared as of the
date of this Agreement. Seller and the Companies hereby covenant and agree
to deliver the Schedules to Buyer, accompanied by a signed certification in
the form of
Exhibit E to this Agreement, on or before March 20, 2007, which such
Schedules shall be incorporated into and become a part of this Agreement.
The date that the Schedules are actually delivered to Buyer, accompanied by
such signed certification, shall be referred to in this Agreement as the
“Schedules Delivery Date”.
(d) Section 12.1 of the Stock Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
12.1 Closing Date. The closing (“Closing”) under this
Agreement shall take place at the offices of Xxxxxxxx Ronon Xxxxxxx & Xxxxx,
LLP, 2600 One Commerce Square, Philadelphia, Pennsylvania, on March 30,
2007, or if the Parties have not received all regulatory approvals required
under Environmental Laws in connection with a change of ownership of the
Companies by such date, a date chosen by Buyer, which is no more than seven
(7) business days following the date that all such regulatory approvals have
been received (the “Closing Date”).
(e) Section 12.2(g)(ii) of the Stock Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
(ii) Employment Agreement. Employment Agreements between Xxxxx
and each of Call and Mouser in the form attached hereto as Exhibit B with
respect to Call, and in such form as is satisfactory to Buyer with respect
to Mouser (collectively, the “Employment Agreements”), executed by
such individuals.
(f) Section 12.2(g)(xii) of the Stock Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
(xii) Joinder to this Agreement. Each of Xxxxx and
Xxxxxx shall have become a party to this Agreement by executing a joinder,
as to Mouser, in the form attached hereto as Exhibit D and as to
Xxxxx, in such form as is satisfactory to Buyer, and delivering the same to
Buyer.
(g) Section 12.3(d) of the Stock Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
(d) Shareholder Loan Payment. Buyer shall cause or
permit the Companies to (i) pay to Call the sum of $1,000,000 in partial
satisfaction of the Shareholder Loan (the “Closing Date Shareholder Loan
Payment”), and (ii) execute and deliver to Call the Subordinated
Promissory Note.
(h) Section 14.2 of the Stock Purchase Agreement is hereby amended by adding the following
provisions at the end thereof:
All amounts advanced by the Companies to Seller’s counsel, (including
without limitation Xxxxxxx Xxxxxxxxx) on behalf of Seller relating to the
transactions contemplated by this Agreement, in excess of $100,000 (the
“Deferred Expenses”) will be reimbursed by Call to the Companies at Closing
by Buyer’s offset against the Closing Date Shareholder Loan Payment, and the
Deferred Expenses will be offset against amounts due under Subordinated
Promissory Note #2, referenced in Exhibit C-1 herein.
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(i) The definition of the phrase “Subordinated Promissory Note” set forth in Exhibit A
DEFINITIONS AND USAGE, attached to and comprising a part of the Stock Purchase Agreement, is hereby
amended and restated in its entirety to read as follows:
“Subordinated Promissory Note” shall mean, collectively, (A)
that certain Subordinated Promissory Note in the form of Exhibit C
attached hereto, pursuant to which $2,425,000 of the principal balance of
the Shareholder Loan (net of the Closing Date Shareholder Loan Payment),will
be paid in three installments of principal, as follows: (i) $312,000 on or
before December 31, 2008, (ii) $478,000 on or before December 31, 2009, and
(iii) $1,635,000 on or before December 31, 2010, together with interest on
the outstanding principal balance at the rate of 6.770% per annum,
compounded monthly, and (B) that certain Subordinated Promissory Note #2, in
the form of Exhibit C-1 attached hereto, pursuant to which the
remaining $1,000,000 of the principal balance of the Shareholder Loan (net
of the Closing Date Shareholder Loan Payment),will be paid in one
installment of principal 180 days after the Closing Date with interest on
the outstanding principal balance at the rate of 6.77% per annum, simple
interest.
(j) The Exhibits to the Stock Purchase Agreement are hereby amended to add thereto as new
Exhibit C-1, the form of Subordinate Promissory Note #2, attached hereto as Exhibit C-1, and which,
taken together with the Subordinated Promissory Note heretofore attached to the Stock Purchase
Agreement as Exhibit C, will together comprise the “Subordinated Promissory Note”, as such
term is defined in the Stock Purchase Agreement, as amended by this Second Amendment.
2. Effect on Agreement; General Provisions. Except as set forth in this
Second Amendment, the terms and provisions of the Agreement are hereby ratified and
declared to be in full force and effect. This Second Amendment shall be governed by the
provisions of the Agreement, as amended by this Second Amendment, which provisions are
incorporated herein by reference. This Second Amendment shall become effective upon its
execution, which may occur in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same document.
IN WITNESS WHEREOF, the parties have caused this Second Amendment to be executed as of the day
and year first above written.
| /s/ Xxxxxxx X. Call | /s/ Xxx Xxxxxx | |||||||||
| Xxxxxxx X. Call, Individually | Xxx Xxxxxx, Individually | |||||||||
| MIDATLANTIC RECYCLING TECHNOLOGIES, INC. | ||||||||||
By:
|
/s/ Xxxxxxx X. Call | |||||||||
| Xxxxxxx X. Call, President | ||||||||||
| XXXXX ECOLOGY OIL SALVAGE, INC. | REZULTZ, INCORPORATED | |||||||||
By:
|
/s/ Xxxxxxx X. Call | By: | /s/ Xxxxxxx X. Call | |||||||
| Xxxxxxx X. Call, President | Xxxxxxx X. Call, President | |||||||||
| PURE EARTH, INC. | ||||||||||
By:
|
/s/ Xxxx Xxxxxxxxx | |||||||||
| Xxxx Xxxxxxxxx, Chief Executive Officer | ||||||||||
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Table of Omitted Exhibits
| Exhibit | Description | |
Exhibit A
|
Definitions and Usage | |
Exhibit B
|
Employment Agreement | |
Exhibit C
|
Subordinated Promissory Note | |
Exhibit D
|
Joinder to this Agreement | |
Exhibit E
|
Signed Certification |
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