AgriFuel Co. AMENDED AND RESTATED STOCK SUBSCRIPTION AGREEMENT AND STOCKHOLDER AGREEMENT
Exhibit 10.1
AgriFuel Co.
AMENDED AND RESTATED
STOCK SUBSCRIPTION AGREEMENT
AND STOCKHOLDER AGREEMENT
AMENDED AND RESTATED
STOCK SUBSCRIPTION AGREEMENT
AND STOCKHOLDER AGREEMENT
This Amended and Restated Stock Subscription Agreement and Stockholder Agreement (this
“Agreement”) is entered into as of November 30, 2006 by and among (i) AgriFuel Co., a
Delaware corporation (the “Company”), (ii) the purchasers of common stock of the Company
signatory hereto (collectively the “Purchasers” and each individually a
“Purchaser”), and (iii) Metalico, Inc., a Delaware corporation (“Metalico”). The
parties hereto hereby agree as follows:
WHEREAS, Metalico and the founders of the Company are or will be the holders of all of the
shares of common stock issued by the Company; and
WHEREAS, the Purchasers have previously entered into that certain Stock Subscription Agreement
by and between such Purchasers and the Company dated on or about September 29, 2006 (the
“Original Agreement”), providing for the issuance and sale of additional shares of common
stock of the Company to the Purchasers; and
WHEREAS, as a further inducement to the Purchasers to acquire their respective interests in
the Company, Metalico has agreed to certain provisions in addition to those set forth in the
Original Agreement, all on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth in and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree to amend and restate the Original Agreement in its entirety as follows:
1. AUTHORIZATION. The Company acknowledges that it has authorized the issue and sale of
certain shares of the common stock of the Company to be held by Metalico and the founders of the
Company more specifically set forth as "Founders Capitalization” in Schedule 6A
attached hereto. The Company has authorized or will authorize the issue and sale of additional
shares of common stock in the Company (the “Securities") to be held by the respective
Purchasers in the amounts and for the consideration (for each individual Purchaser such Purchaser’s
“Capital Contribution”) set forth below such Purchaser’s signature hereto.
2. PURCHASE AND SALE OF SECURITIES; CLOSING.
2A. Purchase and Sale of Securities. Subject to the terms and conditions of this Agreement,
the Company shall sell to each Purchaser, and each Purchaser shall purchase from the Company,
Securities in the number specified below such Purchaser’s signature hereto at a price equal to
$31.25 per share for the Capital Contribution set forth below such Purchaser’s signature hereto, in
each case registered in such Purchaser’s name or that of the Purchaser’s nominee or nominees.
Notwithstanding the foregoing, each Purchaser’s obligations under this Agreement are several and
not joint obligations and no Purchaser shall have any obligation or liability for the performance
or non-performance by any other Purchaser of such other Purchaser’s obligation under this
Agreement. In the event that the aggregate number of shares of Securities subscribed to by
Purchasers equals or exceeds 220,000, (i) the Company reserves the right to increase the aggregate
number of shares available or to reduce the subscriptions of individual Purchasers, in either case
in the Company’s discretion, and (ii) Metalico shall have the right, in its discretion, to purchase
such additional shares as it may determine in order to preserve its majority interest in the common
stock of the Company.
2B. Closing. The purchase and sale of the Securities shall take place at the offices of
AgriFuel Co., 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx at a closing (the “Closing”) to
be held within ten (10) days after the date of execution of this Agreement (the “Closing
Date”).
3. CONDITIONS OF CLOSING. Each Purchaser’s obligation to purchase and pay for its Securities
at the Closing is subject to the fulfillment to its satisfaction or its written waiver of the
following conditions, provided that the closing of the purchase shall constitute the waiver by the
Purchasers of any such conditions that shall not have theretofore been satisfied:
3A. Formation of Company. The Company shall be duly organized, validly existing and in good
standing under the laws of the State of Delaware.
3B. Representations and Warranties. The representations and warranties contained in Paragraph
6 hereinbelow shall be true and correct on and as of the Closing Date after giving effect to the
issue and sale of the Securities and application of the proceeds as contemplated by the Agreement.
3C. Sale of all Securities. The Company shall have sold to each Purchaser and each Purchaser
shall have purchased the Securities to be purchased by it at the Closing as provided in Paragraph
2B hereinabove, provided that the failure of any Purchaser to close or consummate its
purchase of Securities shall not excuse or waive the obligation of any other Purchaser to close or
consummate its respective purchase.
4. COVENANTS OF THE COMPANY.
4A. Financial and Other Reporting by the Company. The Company will deliver to each holder of
a Security:
(i) that certain business plan of the Company dated as of August 2006, as amended through the
date hereof;
(ii) with reasonable promptness after any officer of the Company obtains knowledge or notice,
either written or oral, of any condition or event particular to the Company which could reasonably
be expected to have a material adverse effect on the business, operations, or prospects of the
Company, subject to Paragraph 5D hereinbelow; and
(iii) with reasonable promptness, any such other information and data with respect to the
Company as from time to time may be reasonably requested by any holder or holders of a Security,
subject to Paragraph 5D hereinbelow.
4B. Use of Proceeds. The Company will use the proceeds of the sale of the Securities to fund
investments in developmental-stage and existing plant production projects, the purchase and/or
construction of a biodiesel refinery, the funding of various and ancillary start-up costs, the
payment of general operating expenses including payroll, and other general corporate purposes.
4C. Business of the Company. The business of the Company shall be: to become a vertically
integrated international biofuels production, storage, distribution and marketing company; to own
farmland for the production of biofuels feedstock; and to acquire and operate existing biofuel
production facilities.
4D. Investor Relations Firm. On or before the effective date of the the registration or
acceptance for trading of the Company’s stock by a Trading Platform (as defined in Paragraph 5C),
the Company shall retain an investor relations firm to promote the Company’s stock.
5. CONDITIONAL RIGHT TO SELL.
5A. Sale Rights. (i) Unless a Public Trading Event (as defined in Paragraph 5C) has occurred
on or before November 30, 2007, each Purchaser shall have the right as of December 1, 2007, upon
thirty (30) days written notice (a “Sale Notice”) to Metalico, to require Metalico to
purchase all or a portion of the Securities of such Purchaser acquired pursuant to this Agreement
for consideration equal to, at the option of such Purchaser, either:
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(a) cash in an amount equal to twice the portion of such Purchaser’s Capital
Contribution allocable to the Securities subject to such sale, or
(b) common stock of Metalico, at a per-share price equal to the closing price for
Metalico common stock on the American Stock Exchange on the date such Purchaser’s Capital
Contribution was made, for the portion of such Purchaser’s Capital Contribution allocable to
the Securities subject to such sale.
A Purchaser may in its discretion allocate any such sale of all or a portion of its Securities
between the two options described in this Paragraph 5A(i).
(ii) Each Purchaser’s right to deliver a Sale Notice and to compel a sale as provided under
Paragraph 5A(i) shall terminate as of the close of business on December 31, 2007.
(iii) Metalico shall make any cash payment required in connection with a sale pursuant to
Paragraph 5A(i)(a) within thirty (30) days of its receipt of an appropriate Sale Notice and shall
issue and cause to be delivered any stock required in connection with a sale pursuant to Paragraph
5A(i)(b) promptly after its receipt of an appropriate Sale Notice, subject to regulatory and
exchange requirements.
5B. Stock Rights. Nothing in this Agreement shall confer or be deemed to confer any
“tagalong” or other rights in connection with the Securities or any common stock of Metalico
acquired pursuant to Paragraph 5A(i)(b) except as expressly set forth herein. Each Purchaser
expressly acknowledges and agrees that the date of acquisition of any Metalico stock pursuant to
Paragraph 5A(i)(b) shall be the date the stock of the Company used by the Purchaser to acquire such
Metalico stock is delivered to Metalico as payment therefor, such date being the date of
acquisition of the Metalico stock for purposes of Rule 144. Metalico shall use its best efforts to
register any stock issued pursuant to Paragraph 5A(i)(b) within 120 days of issuance so as to allow
for public sale.
5C. Public Trading Event. For purposes of this Paragraph 5, “Public Trading Event”
means the filing of an appropriate application and required supporting materials with any national
securities exchange or listing service providing a platform for public trading in the Company’s
common stock, expressly including without limitation the American Stock Exchange, the NASDAQ
market, the OTC Bulletin Board, the Pink Sheets trading system, or any similar trading provider
(each a “Trading Platform”). By its execution of this Agreement, the Company agrees to use
its best efforts to cause a Public Trading Event to occur on or before November 30, 2007. By its
execution of this Agreement, Metalico agrees to use its best efforts to seek the authorization of
its Board of Directors, to the extent necessary, to cause or permit any actions by the Company
necessary or appropriate to achieve a Public Trading Event and the effectiveness of any resulting
registration or listing, provided that nothing in this Xxxxxxxxx 0X xxxxx xx deemed to
obligate Metalico to perform any act in violation of applicable law or regulation.
5D. Insider Information. Upon the registration or acceptance for trading of the Company’s
stock by a Trading Platform, the Company’s obligations to individual Purchasers under Paragraphs
4A(ii) and (iii) shall automatically terminate unless, with respect to any individual Purchaser,
such Purchaser delivers written notice to the Company to the effect that such Purchaser wishes to
continue receiving the information contemplated thereunder. Each Purchaser acknowledges that
receipt of such information may subject it to xxxxxxx xxxxxxx restrictions under federal securities
law.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants:
6A. Organization, Etc. (i) It is duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all requisite power and authority to carry on its
business as now being conducted and which it proposes to conduct. It has all requisite power and
authority to execute, deliver and perform its obligations under this Agreement. Schedule
6A correctly identifies the correct legal name of the Company, its jurisdiction of
organization, the jurisdictions in which it is qualified to do business and its officers and
directors.
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(ii) This Agreement has been duly authorized by all necessary action on its part and has been
or will have been as of the Closing Date duly executed and delivered by its duly authorized
officers and constitutes (or will constitute upon execution thereof by such officers) its legal,
valid and binding obligations, enforceable against it in accordance with its terms.
6B. Company Ownership. Its outstanding shares are as described on Schedule 6A. All
of the outstanding shares are or will be, by the Closing Date, validly issued, fully paid and
non-assessable and, to the knowledge and expectation of the Company, are now owned or will be owned
immediately after the Closing, of record and, to the knowledge of the Company, beneficially, in the
amounts and by the persons as set forth in Schedule 6A as it may be supplemented prior to
the Closing Date, free and clear of any lien of any kind, provided that the Company makes
no warranty or guaranty that the Purchasers designated on Schedule 6A have consummated or
will consummate their respective purchases of Securities and therefore makes no representation or
warranty that the ownership of outstanding shares set forth in Schedule 6A with respect to
Purchasers will be accurate. The designation, powers, preferences, rights, qualifications,
limitations and restriction in respect of the Securities are as set forth in the Company’s
certificate of incorporation as it has been or may be amended from time to time and are valid,
binding and enforceable in accordance with all applicable laws. The Securities, when issued, will
be validly issued, fully paid and non-assessable and with no personal liability attaching to the
ownership thereof and will be free and clear of all liens, charges and restrictions.
7. REPRESENTATIONS OF THE PURCHASERS. Each Purchaser represents (with respect to itself only)
that:
7A. Purchase for Own Account. It is purchasing its Securities for its own account and not
with a view to the distribution thereof or with any present intention of distributing or selling
any of the Securities, provided that the disposition of the Purchaser’s property shall at all times
be within its control subject to applicable law and regulation.
7B. Accredited Investor Status. It has such knowledge and experience in financial affairs
that it is capable of evaluating the merits and risks of purchasing the Securities purchased by it,
and it has not relied in connection with this investment upon any representations, warranties or
agreements other than those set forth in this Agreement. Its financial situation is such that it
can afford to bear the economic risk of holding the Securities for an indefinite period of time,
and can afford to suffer the complete loss of its investment in the Securities. It is an
“accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the
Securities Act of 1933, as amended.
7C. Unregistered Securities. It is aware that the Securities have not been registered under
the federal Securities Act of 1933, as amended, or any state securities laws, pursuant to
exemptions from registration. It understands that the reliance by the Company on such exemptions
is predicated in part upon the truth and accuracy of the statements by such Purchaser in this
Agreement.
8. REPRESENTATIONS OF METALICO. Metalico represents and warrants:
(i) It is duly organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority to execute, deliver and perform its obligations
under this Agreement.
(ii) This Agreement has been duly authorized by all necessary action on its part and has been
or will have been as of the Closing Date duly executed and delivered by its duly authorized
officers and constitutes (or will constitute upon execution thereof by such officers) its legal,
valid and binding obligations, enforceable against it in accordance with its terms.
9. RATABLE LIQUIDATION. If the Company shall be voluntarily or involuntarily liquidated,
dissolved, or wound up (including, without limitation, any liquidation or dissolution following a
sale or transfer of all or substantially all of the assets of the Company and including a merger or
other combination in which the Company is not the surviving corporation) (collectively, a
“Liquidation”), then, as among the Purchasers and
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Metalico and solely with respect to the common stock of the Company issued and outstanding
upon the consummation of the purchases contemplated under this Agreement, each such party shall be
entitled to a distribution from the property of the Corporation available for distribution to
stockholders upon such Liquidation in an amount ratably proportional to such party’s investment in
the Company upon the effectiveness of this Agreement and not, to the extent it may differ, in
proportion to the respective numbers of shares of the Company’s stock held by each such party.
10. MISCELLANEOUS.
10A. Consent to Amendments. This Agreement may not be amended without the prior written
consent of the Company, Metalico, the Purchasers and their respective permitted successors and
assigns.
10B. Survival of Representations and Warranties; Entire Agreement. All representations and
warranties contained in this Agreement shall survive the execution of this Agreement. This
Agreement embodies the entire agreement and understanding among the Purchasers, the Company, and
Metalico and supersedes all prior agreements and understandings relating to the subject matter
hereof and thereof, expressly including without limitation the Original Agreement.
10C. Successors and Assigns. All covenants and other agreements in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto (including, without limitation, any transferee)
whether so expressed or not, provided neither the Company nor Metalico may delegate the performance
of any of its respective obligations hereunder or assign any of its rights hereunder.
10D. Additional Stock. Nothing in this Agreement shall limit or be deemed to limit the right
of Metalico or any Purchaser to acquire additional shares of the common stock of the Company
through subsequent subscriptions, additional stock issuances, private or public purchases from the
Company or other holders, or otherwise. By its execution of this Agreement, each party
acknowledges and agrees that the rights granted under this Agreement are granted solely with
respect to the Securities purchased hereunder and do not and shall not attach to any other common
stock issued by the Company to any holder thereof.
10E. Governing Law. THIS AGREEMENT IS TO BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO ANY LAWS OR RULES RELATING TO CONFLICTS OF LAWS THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK).
10F. Counterparts. This Agreement may be executed simultaneously in two or more counterparts,
each of which 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.
10G. Severability. If any provision of this Agreement shall be held or deemed to be, or shall
in fact be, invalid, inoperative, illegal or unenforceable as applied to any particular case in any
jurisdiction because of the conflicting of any provision with any constitution or statute or rule
of public policy or for any other reason, such circumstance shall not have the effect of rendering
the provision or provisions in question invalid, inoperative, illegal or unenforceable in any other
jurisdiction or in any other case or circumstance or of rendering any other provision or provisions
herein contained invalid, inoperative, illegal or unenforceable to the extent that such other
provisions are not themselves actually in conflict with such constitution, statute or rule of
public policy, but this Agreement shall be reformed and construed in any such jurisdiction or case
as if such invalid, inoperative, illegal or unenforceable provision had never been contained herein
and such provision reformed so that it would be valid, operative and enforceable to the maximum
extent permitted in such jurisdiction or in such case.
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If you are in agreement with the foregoing, please sign the form of acceptance set forth below
and return the same to the Company.
| AGRIFUEL CO. |
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| By: | ||||
| Xxxxxx X. Xxxxxx | ||||
| Chairman | ||||
The foregoing Agreement is hereby accepted as of
the date first above written.
the date first above written.
*
By: |
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Name: |
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Capital Contribution: $ |
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Number of Shares: |
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| * | Corporate/business entities: Please insert appropriate Purchaser’s name and signature block. |
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