AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
This Amendment No. 1 to the Stock Purchase Agreement, dated
November 26, 1996 (the "Stock Purchase Agreement"), by and among
IMCO Recycling Inc., a Delaware corporation ("Purchaser"),
IMSAMET, Inc., a Delaware corporation ("IMSAMET"), and
EnviroSource, Inc., a Delaware corporation ("Seller"), is made by
and among Purchaser, IMSAMET and Seller as of the 21st day of
January, 1997. Capitalized terms used but not defined herein
have the meanings ascribed to them in the Stock Purchase
Agreement.
W I T N E S S E T H
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WHEREAS, Purchaser, IMSAMET and Seller have entered into the
Stock Purchase Agreement;
WHEREAS, the closing of the transactions contemplated by the
Stock Purchase Agreement will occur today, January 21, 1997 (the
"Closing Date");
WHEREAS, the parties to the Stock Purchase Agreement desire
to make the purchase and sale of the Shares contemplated by the
Stock Purchase Agreement effective as of January 1, 1997;
WHEREAS, Seller is willing to indemnify Purchaser against
certain liabilities under the Multiemployer Pension Plan
Amendments of 1980 ("MPPAA");
WHEREAS, the parties to the Stock Purchase Agreement wish to
amend certain environmental-related provisions of the Stock
Purchase Agreement; and
WHEREAS, the parties to the Stock Purchase Agreement wish to
memorialize certain agreements and arrangements among them in
connection with the conditions set forth in Section 5.01(c) and
5.02(c) of the Stock Purchase Agreement and certain tax-related
elections;
NOW, THEREFORE, Purchaser, IMSAMET and Seller hereby agree
as follows:
A. EFFECTIVE DATE OF PURCHASE AND SALE
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1. The purchase and sale of the Shares contemplated by the
Stock Purchase Agreement shall be effective as of
January 1, 1997 and Purchaser shall be entitled to all
profits and losses of IMSAMET on and after January 1,
1997.
2. The definition in Article I of the Stock Purchase
Agreement "Closing Balance Sheet" is hereby amended by
deleting from the first sentence thereof the terms "the
day before the Closing Date" and inserting in lieu
thereof the terms "December 31, 1996".
3. In addition to the Adjustment of the Purchase Price
pursuant to Section 2.02 of the Stock Purchase
Agreement, there shall be the following further
adjustment:
(a) To the extent that any payment or
distribution of cash is made by IMSAMET to Seller
or any subsidiary of Seller other than the
Companies or SALTS during the period commencing on
January 1, 1997 and ending on the Closing Date
(the "Interim Period"), the Purchase Price shall
be reduced by such amount.
(b) To the extent that any payment or
distribution of cash is made by Seller or any
subsidiary of Seller other than the Companies or
SALTS to IMSAMET during the Interim Period, the
Purchase Price shall be increased by such amount.
Such an addition or subtraction from the Purchase Price
shall be made a part of the Closing Adjustment
procedure contemplated by Section 2.02 of the Stock
Purchase Agreement.
B. MPPAA INDEMNIFICATION
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4. Article I of the Stock Purchase Agreement is hereby
amended by adding the following definition (in the
appropriate alphabetical position):
"'MPPAA Claims' means any and all Losses directly
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or indirectly incurred, suffered, sustained or
required to be paid by, or sought to be imposed
upon Purchaser, including Purchaser's share of
Losses incurred, suffered, sustained or required
to be paid by, or sought to be imposed upon any of
Purchaser's Indemnified Persons, resulting from,
relating to or arising out of claims based on
liabilities under the Multiemployer Pension Plan
Amendments of 1980 of P-I-E Nationwide, Inc. (a
former subsidiary of a corporation acquired by
Seller)."
5. Section 7.01(a) of the Stock Purchase Agreement is
hereby amended by: (i) deleting the word "and" at the
end of Section 7.01(a)(5), (ii) deleting the period and
adding ", and" at the end of Section 7.01(a)(6), (iii)
adding the following new clause (7) at the end of
Section 7.01(a):
"(7) any MPPAA Claims."
6. Section 7.01(b)(3) is hereby amended by deleting it in
its entirety and by replacing it with the following:
"(3) 'NON-ENVIRONMENTAL CLAIMS' means claims for
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indemnification under: (i) clause (1) of Section
7.01(a), except to the extent that such claims
relate to breaches of Section 3.01(k), (ii) clause
(2) of Section 7.01(a), and (iii) clause (7) of
Section 7.01(a). Non-Environmental Claims shall
not be payable in any event with respect to Losses
directly or indirectly incurred by Purchaser that
do not exceed in the aggregate (x) $500,000 less
(y) one-half of the Initial Environmental
Liability."
7. Section 7.01(b)(5) is hereby amended by deleting it in
its entirety and by replacing it with the following:
"(5) (A) Seller's liability for claims under this
Section 7.01 (except to the extent that such
claims relate to breaches of Section 3.01(o) and
3.01(p) hereof) shall not exceed $17,500,000 (as
adjusted pursuant to Section 5.01(m)), (B)
Seller's liability for claims under this Section
7.01 relating to breaches of Section 3.01(o) and
3.01(p) hereof shall not exceed the Purchase Price
(as adjusted pursuant to Section 2.02), and (C)
Seller's liability for claims under this Section
7.01 relating to MPPAA Claims shall not exceed the
Purchase Price (as adjusted pursuant to Section
2.02); provided, however, that in no event shall
Seller's liability for claims (of any description)
under this Section 7.01 exceed the Purchase Price
(as adjusted pursuant to Section 2.02)."
8. Section 7.05(b) is hereby amended by deleting the
penultimate sentence thereof in its entirety and
replacing it with the following:
"All other covenants and agreements contained in
or made pursuant to this Agreement (including
Section 7.01 and 7.02) shall survive the Closing
for so long as any claim may be made in respect of
such matters under any applicable statute of
limitations, except that (i) Sections 7.01(a)(4)
and (5) shall survive the Closing until (but
excluding) the tenth anniversary of the Closing
Date (subject to Section 7.01(b)(4) hereof) and
(ii) Section 7.01(a)(7) shall survive the Closing
until (but excluding) the sixth anniversary of the
Closing Date."
9. The Seller agrees that, in connection with any release
of the Seller and/or any of its subsidiaries by any
multi-employer plan (or any trustee or union sponsor
thereof) from any actual or potential claims based on
liabilities under MPPAA of P-I-E Nationwide, Inc., it
will use its best efforts to include the Companies
(without naming them specifically in such release).
E. SECTION 338(H)(10) ELECTION
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10. From and after the date hereof, the Purchaser and the
Seller will negotiate in good faith in order to reach a
mutually acceptable agreement or arrangement as to
whether or not the Purchaser and/or the Seller (as
appropriate) shall make an election contemplated by
Section 338(h)(10) of the Code in connection with the
Purchase and Sale.
F. ENVIRONMENTAL-RELATED AMENDMENTS
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11. The last sentence of Section 3.01(k) of the Stock
Purchase Agreement is hereby amended by adding thereto,
immediately after the terms "breaches of this Section
3.01(k)" and immediately before the comma (",") that
appears immediately thereafter, the following:
"(disregarding for the purpose of this definition only,
all the terms appearing after the comma in the first
sentence of this Section 3.01(k))".
▇. ▇▇▇▇▇▇▇ SETTLEMENT AGREEMENT
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11. The Seller and the Purchaser hereby acknowledge that
the Agreement, dated January 16, 1997 by and among ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, Magna Aluminum Refining Inc.,
the Seller and the Purchaser serves to settle the
matter disclosed on (updated) Schedule 3.01(g) of the
Disclosure Schedule. As a result of the foregoing (as
well as other relevant facts and circumstances), the
Purchaser acknowledges that Section 5.01(c) of the
(the remainder of this page is intentionally left blank)
Stock Purchase Agreement is satisfied and the Seller
acknowledges that Section 5.02(c) of the Stock Purchase
Agreement is satisfied.
IN WITNESS WHEREOF, the undersigned have executed this
Amendment No. 1 to the Stock Purchase Agreement as of January 21,
1997.
ENVIROSOURCE, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President -
Planning
IMSAMET, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
IMCO RECYCLING INC.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President & Chief
Executive Officer