exv10w1



 





Exhibit 10.1




BEACON ENERGY CORP.




AMENDMENT NO. 1

TO THE

AMENDED AND RESTATED

STOCK SUBSCRIPTION AGREEMENT

AND STOCKHOLDER AGREEMENT




     This Amendment No. 1 to the Amended and Restated Stock Subscription Agreement and Stockholder
Agreement (this “Agreement”) is entered into as of August 22, 2007 by and among (i) Beacon
Energy Corp. (f/k/a AgriFuel Co.)., a Delaware corporation (the “Company”), (ii) the
Investors of common stock of the Company signatory hereto (collectively the “Investors” and
each individually a “Investor”), and (iii) Metalico, Inc., a Delaware corporation
(“Metalico”). The parties hereto hereby agree as follows:



     WHEREAS, Metalico and the Investors are parties to that certain Amended and Restated Stock
Subscription Agreement and Stockholder Agreement dated as of November 30, 2006 (the “Original
Agreement”); and



     WHEREAS, Metalico and the Investors are entering into that certain Series B Subscription
Agreement and Stockholder Agreement, providing for the issuance and sale of additional shares of
common stock of the Company to Metalico and the Investors; and



     WHEREAS, as a further inducement to the Company to issue such additional shares of common
stock, Metalico and the Investors have agreed to amend certain provisions of 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 the Original Agreement as follows:



     1. AMENDMENT OF SECTION 5, “CONDITIONAL RIGHT TO SELL”.



     Section 5 of the Original Agreement shall be amended and replaced in its entirety with the
following:




     “5. CONDITIONAL RIGHT TO SELL.




          5A. Sale Rights. (i) Unless a Public Trading Event (as defined in Paragraph 5C) has
occurred, each Purchaser shall have the right as of August 1, 2008 or December 1, 2008, as
determined by reference to Paragraph 5C, 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:




     (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 September 2,, 2008 or
January 2, 2009, as determined by reference to Paragraph 5C and 5A.




               (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 occurrence of one of the following





	 	(i)	 	as of April 30, 2008 the Company shall have completed the filing of an
appropriate application and required supporting materials with any of the following
national securities exchanges or listing services providing a platform for public
trading in the Company’s common stock: the American Stock Exchange, the New York Stock
Exchange, the NASDAQ market, or the OTC Bulletin Board (each a “Traditional Trading
Platform”) or
	 
	 	(ii)	 	as of July 31, 2008 completed an alternative listing arrangement through a
reverse merger with a public shell, a listing on the Pink Sheets trading system,
acquisition by a Special Purpose Acquisition Company (“SPAC”) or any other similar
mechanism deemed appropriate by the Company’s Board of Directors (each a
“Non-Traditional Trading Platform” and, collectively together with the
Traditional Trading Platform each a “Trading Platform” ).





     If the Company elects to cause a Public Trading Event to occur by making the filing
contemplated in clause (i) above, the Company shall use its reasonable efforts to have its filed
application, as such may be amended, declared “effective” by the Securities Exchange Commission no
later than September 30, 2008. If the Company fails to have such filed application declared
effective by September 30, 2008, it shall have until December 1, 2008 to complete a listing through
a Non-Traditional Trading Platform. If the Company fails to cause a Public Trading Event as
contemplated above and within either of the time frames contemplated above, the Purchasers’ sole
remedy shall be the rights set forth in Paragraph 5A.



     3. AMENDMENT OF SECTION 10A “Consent to Amendments”.



     Section 10A of the Original Agreement shall be amended and replaced in its entirety with the
following:



     “10A. Consent to Amendments. Except for Section 5 and this Paragraph 10A, this Agreement may
not be amended without the prior written consent of the Company, Metalico, and that number of



 









 







Purchasers holding eighty-percent (80%) of the Securities owned by the Purchasers in the
aggregate and their respective permitted successors and assigns. With respect to Section 5 and this
Paragraph 10A, they may not be amended without the prior written consent of the Company, Metalico
and all the Purchasers and their respective permitted successors and assigns. “



     4. NO FURTHER AMENDMENT



     All other terms and conditions of the Original Agreement shall remain in full force and
effect.



     5. MISCELLANEOUS.



          5A. Consent to Amendments. This Agreement may not be amended without the prior written
consent of the Company, Metalico, and all the Purchasers and their respective permitted successors
and assigns.




          5B. Survival of Representations and Warranties; Entire Agreement. All representations and
warranties contained in the Original Agreement are true and correct as of the date hereof. This
Agreement embodies the entire agreement and understanding among the Investors, 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.




          5C. 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.




          5D. 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.




          5E. 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).




          5F. 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.




          5G. 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.




     IN WITNESS WHEREOF, the parties hereto have executed or caused this Agreement to be executed
by their officers thereunto duly authorized, under seal, as of the date first above written.



	 	 	 	 	 
	 	BEACON ENERGY CORP.

 	 
	 	By:  	 	 
	 	 	Carlos E. Agüero 	 
	 	 	Chairman 	 
	 



	 	 	 	 	 
	METALICO, INC.

 	 	 
	By:  	 	 	 
	 	Carlos E. Agüero 	 	 
	 	Chief Executive Officer 	 	 
	 



	 	 	 	 	 	 
	The foregoing Agreement is hereby accepted as of the date first above written.





INVESTORS

 	 	 
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