EX-10.1






Exhibit 10.1




AMENDMENT AGREEMENT




THIS AMENDMENT AGREEMENT (this “Agreement”) is made as of this 4th day of June 2009, by and
among Metalico, Inc., a Delaware corporation with headquarters located at 186 North Avenue East,
Cranford, New Jersey 07016 (the “Company”), and Portside Growth and Opportunity Fund (the
“Investor”).



Recitals




WHEREAS, the Company and the Investor are parties to that certain Exchange Agreement, dated as
of April 23, 2009 (the “Exchange Agreement”), pursuant to which, among other things, the Investor
agreed to exchange 7.0% Senior Convertible Notes due 2028 of the Company for shares of the
Company’s common stock, par value $0.001 per share; and



WHEREAS, the Company and the Investor desire to enter into this Agreement, pursuant to which,
among other things, certain terms of the Exchange Agreement shall be amended.



NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:




	 	1.	 	AMENDMENTS TO THE EXCHANGE AGREEMENT.





(a) The reference to “58%” in clause (ii) of Paragraph B of the Preamble is hereby
replaced with “61%”.



(b) The reference to “$10,000,000” in Paragraph D of the Preamble is hereby replaced
with “$15,000,000”.



(c) Section 1(c) is hereby amended and restated in its entirety as follows:




Second Closing Date. The date and time of the closing of the Second
Exchange (the “Second Closing” and together with the First Closing, each a
“Closing”) shall be 5:00 p.m., New York Time, on June 4, 2009 (the “Second Closing
Date” and together with the First Closing Date, each a “Closing Date”), subject to
notification of satisfaction (or waiver) of the conditions to the Second Closing set
forth in Sections 4(b) and 5(b) below (or such earlier or later date and time as is
mutually agreed to by the Company and the Investor). The Second Closing shall occur
on the Second Closing Date by exchange of appropriate documents among the parties.



(d) Section 2(m)(iii) is hereby amended and restated in its entirety as follows:




On the sixteenth (16th) Trading Day immediately following the Second Closing Date
(the “Second Initial True Up Date”), the Company shall deliver to the Investor,
provided the formula set forth below yields a number greater than zero, by causing
DTC to credit the applicable shares of Common Stock to the account of the Investor
Broker through the facilities of DTC, an additional number of shares of Common Stock
(the “Second Initial True Up Common Shares”) equal to (A) the quotient calculated by
dividing (1) 61% of the Second Initial Exchanged Note Amount by (2) the arithmetic
average of the Weighted Average Prices (as defined in the Notes) of the Common Stock
on each of the fifteen (15) consecutive Trading Days beginning on, and including,
the Trading Day immediately following the Second Closing Date, less (B) the number
of Second Initial Exchanged Common Shares previously delivered to the Investor.



(e) Section 2(m)(iv) is hereby amended and restated in its entirety as follows:




On the thirty-sixth (36th) Trading Day immediately following the Second Closing Date
(the “Second Final True Up Date” and together with the First Final True Up Date,
each a “Final True Up Date”), the Company shall deliver to the Investor, provided
the formula set forth below yields a number greater than zero, by causing DTC to
credit the applicable shares of Common Stock to the account of the Investor Broker
through the facilities of DTC, an additional number of shares of Common Stock (the
“Second Final True Up Common Shares” and together with the Second Initial True Up
Common Shares, the “Second True Up Common Shares” and the Second True Up Common
Shares together with the First True Up Common Shares, the “True Up Common Shares”)
equal to (A) the quotient calculated by dividing (1) 61% of the Second Initial
Exchanged Note Amount by (2) the arithmetic average of the Weighted Average Prices
(as defined in the Notes) of the Common Stock on each of the thirty-five (35)
consecutive Trading Days beginning on, and including, the Trading Day immediately
following the Second Closing Date, less (B) the sum of the number of (1) Second
Initial Exchanged Common Shares and (2) Second Initial True Up Common Shares, if
any, previously delivered to the Investor.



(f) Section 2(m)(viii) is hereby amended and restated in its entirety as follows:




If the aggregate number of Second Exchanged Common Shares issued to the Investor
pursuant to the terms of this Agreement exceeds the number of shares of Common Stock
determined by dividing (A) 63% of the Second Initial Exchanged Note Amount by (B)
the arithmetic average of the Weighted Average Prices (as defined in the Notes) of
the Common Stock on each of the thirty-five (35) consecutive Trading Days beginning
on, and including, the Trading Day immediately following the Second Closing Date
(such excess number of shares, the “Second Extra True Up Common Shares”, and
together with the First Extra True Up Common Shares, the “Extra True Up Common
Shares”), then (x) immediately after the delivery of the Second Final True-Up Common
Shares, the outstanding principal amount of the Investor’s Notes shall be reduced by
an amount (the “Second Extra True-Up Amount” and together with the First Extra True
Up Amount, the “Extra True Up Amount”) equal to the product of (1) the number of
Second Extra True Up Common Shares and (2) the arithmetic average of the Weighted
Average Prices (as defined in the Notes) of the Common Stock on each of the
thirty-five (35) consecutive Trading Days beginning on, and including, the Trading
Day immediately following the Second Closing Date and (y) on the third Trading Day
after the Second Final True Up Date, the Company shall deliver to the Investor cash
representing all accrued but unpaid interest in respect of the Second Extra True-Up
Amount of the Notes by wire transfer of immediately available funds in accordance
with wire instructions previously delivered to the Company.



(g) The first sentence of Section 2(p) is hereby amended and restated in its
entirety as follows:




The Company shall provide each stockholder entitled to vote at the next annual
meeting of stockholders of the Company (the “Stockholder Meeting”), which shall be
called and held no later than July 31, 2009 (the “Stockholder Meeting Deadline”), a
proxy statement, in a form reasonably acceptable to the Buyers, soliciting each such
stockholder’s affirmative vote at the Stockholder Meeting for approval of the
proposal (the “Proposal”) providing for the issuance of all of the Securities as
described in this Agreement as in effect prior to the effectiveness of any amendment
hereto in accordance with applicable law and the rules and regulations of the
Principal Market (such affirmative approval being referred to herein as the
“Stockholder Approval”) and the Company shall use its reasonable best efforts to
solicit its stockholders’ approval of the Proposal and to cause the Board of
Directors of the Company to recommend to the stockholders that they approve the
Proposal.



(h) Section 2(q) is hereby amended and restated in its entirety as follows:




Additional Disclosure Schedules. The parties hereby agree that prior to the
Second Closing Date the Company may deliver to the Investor an updated Disclosure
Schedule (the “Additional Disclosure Schedule”) to the representations and
warranties of the Company set forth in this Agreement, which (i) shall solely apply
to the Second Closing in accordance with Section 5(b)(v) below, (ii) shall be in
form (without regard to the substance of the disclosures contained therein)
reasonably satisfactory to the Investor and (iii) shall not contain any disclosure
of any events or occurrences that, individually or in the aggregate, would
reasonably be expected to result in a Material Adverse Effect.



(i) Section 5(b)(iv) is hereby deleted in its entirety.



(j) The Schedule of Investors is hereby amended and restated in its entirety in the
form of the Schedule of Investors attached to this Agreement.




	 	2.	 	REPRESENTATIONS AND WARRANTIES.





(a) Authorization; Enforcement; Validity. The Company or the Investor (as
applicable) has the requisite power and authority to enter into and perform its obligations under
this Agreement. This Agreement has been duly and validly executed and delivered by the Company or
the Investor (as applicable) and constitutes the legal, valid and binding obligation of such party,
enforceable in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws from time to time in
effect that affect creditors’ rights generally, and by legal and equitable limitations on the
availability of specific remedies.



(b) No Conflicts. The execution, delivery and performance by the Company or
the Investor (as applicable) of this Agreement and consummation by the Company or the Investor (as
applicable) of the transactions contemplated by this Agreement do not and will not: (i) violate the
organizational documents of such party, (ii) violate any decree or judgment of any court or other
governmental authority applicable to or binding on such party; (iii) violate any provision of any
federal or state statute, rule or regulation which is applicable to such party; or (iv) violate any
contract to which such party or any of its assets or properties are bound, or conflict with, or
constitute a default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment, acceleration or
cancellation of , any agreement, indenture or instrument to which such party is a party.



(c) Approvals. The Company or the Investor (as applicable) has obtained all
governmental, regulatory or third party consents and approvals if any, and approval from its
stockholders, necessary, if any, to consummate the transactions contemplated by this Agreement.




	 	3.	 	CERTAIN COVENANTS AND AGREEMENTS.





(a) Disclosure of Transactions and Other Material Information. On or before
8:30 a.m., New York Time, on the first business day following the date of this Agreement, the
Company shall file a Current Report on Form 8-K describing the terms of the transactions
contemplated by this Agreement and attaching a copy of this Agreement.




	 	4.	 	MISCELLANEOUS.





(a) Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this Agreement.



(b) Governing Law; Jurisdiction. All questions concerning the construction,
validity, enforcement and interpretation of this Amendment shall be governed by the internal laws
of the State of New York, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State of New York or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The
City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding
is improper. Each party hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by mailing a copy thereof to such party
at the address for such notices to it under this Amendment and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner permitted by law.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL
FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS
AMENDMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.



(c) Counterparts. This Amendment may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party;
provided, that a facsimile signature shall be considered due execution and shall be binding
upon the signatory thereto with the same force and effect as if the signature were an original, not
a facsimile signature.



(d) Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity
or enforceability of any provision of this Agreement in any other jurisdiction.



(e) Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.



(f) Effect of Agreement. Except as modified hereby, the Exchange Agreement
shall remain in full force and effect.



(g) No Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and assigns, and is not for
the benefit of, nor may any provision hereof be enforced by, any other person.



(h) No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]





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IN WITNESS WHEREOF, the Company and the Investors have caused their respective signature page
to this Amendment Agreement to be duly executed as of the date first written above.



	 
	COMPANY:
	METALICO, INC.

By:

	 

	Name:

	Title:







2




IN WITNESS WHEREOF, the Company and the Investor have caused their respective signature page
to this Amendment Agreement to be duly executed as of the date first written above.



	 
	INVESTOR:
	      

By:

	 

	Name:

	Title:







3




SCHEDULE OF INVESTORS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	(1	)	 	 	(2	)	 	(3)

	 	 	(4	)	 	 	(5	)	 	 	(6	)
	 	 	 	 	 	 	 	 	
 
	 	Aggregate
	 	

	 	


	 	 	 	 	 	 	 	 	
 
	 	 	 	 	 	

	 	


	Investor
	 	Address and

================

Facsimile Number
	 	Initial Exchanged

====================

Note

====================

Amount To Be

Exchanged At Each

Closing

	 	Number of

====================

First Initial

Exchanged

====================

Common

====================

Shares
	 	





First Cash

==========

Interest

==========

Amount
	 	







Legal

Representative’s

Address and

Facsimile Number

	 	 	 	 	 	 	 	 	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	First Closing:

	 	

	 	

	 	


	 	 	 	 	 	 	 	 	Second Closing:

	 	

	 	

	 	


	 	 	 	 	 	 	 	 	First Closing:

	 	

	 	

	 	


	 	 	 	 	 	 	 	 	Second Closing:

	 	

	 	

	 	


	 	 	 	 	 	 	 	 	First Closing:

	 	

	 	

	 	


	 	 	 	 	 	 	 	 	Second Closing:

	 	

	 	

	 	


	 	 	 	 	 	 	 	 	First Closing:

	 	

	 	

	 	


	 	 	 	 	 	 	 	 	Second Closing:

	 	

	 	

	 	


	 	 	 	 	 	 	 	 	First Closing:

	 	

	 	

	 	


	 	 	 	 	 	 	 	 	Second Closing:

	 	

	 	

	 	


	TOTAL
	 	 	 	 	 	$15,000,000.00

	 	

	 	

	 	









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