EXHIBIT 2.1
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AMENDMENT NO. 1 TO
STOCK AND MEMBERSHIP INTEREST PURCHASE AGREEMENT
This Amendment No. 1 to Stock and Membership Purchase
Agreement
(this "Amendment"), dated as
of November 14, 2003, is by and among Bob Spence
("Seller"); Pick and Pull
Auto Dismantling, Inc., a California corporation (the
"Company"); Pick-N-Pull Auto
Dismantlers, a California general partnership (the
"Partnership"); Pick-N-Pull
Auto Dismantlers, Stockton, LLC, a California
limited liability company
(the "LLC"); Schnitzer Steel Industries, Inc., and
Oregon corporation
("Schnitzer"); and Norprop, Inc., an Oregon corporation
("Buyer").
RECITALS
A. Seller, the Company, the Partnership, the LLC, Schnitzer
and
Buyer are parties to that
certain Stock and Membership Interest Purchase
Agreement dated as of January
8, 2003 (the "Purchase Agreement"), pursuant to
which Seller sold to Buyer
all of the outstanding stock of the Company (the
"Stock") and his 100%
membership interest in the LLC. Capitalized terms used
and
not otherwise defined in this
Amendment have the meanings given to them in the
Purchase
Agreement.
B. Seller and Buyer have recently disagreed as to the proper
method
of determining scrap pricing
for purposes of calculating 2003 Adjusted
Partnership EBITDA and 2003
LLC EBITDA and thereby determining the appropriate
adjustments to the Company
Purchase Price and LLC Purchase Price under Sections
2.4 and 2.5 of the Purchase
Agreement.
C. Buyer desires that Seller (and Seller's spouse) and Buyer
jointly
elect to treat the sale of
the Stock pursuant to the Purchase Agreement as a
sale of assets under Section
338(h)(10) of the Internal Revenue Code of 1986, as
amended (the
"Code").
D. As consideration for Seller's making the above-described
election
and agreeing to resolve the
differences with respect to scrap pricing for
purposes of calculating the
amount of any purchase price adjustments under
Sections 2.4 and 2.5 of the
Purchase Agreement, Buyer is willing to pay Seller,
as additional consideration
for the sale of the Stock, cash in the amount of
$4,665,000.
NOW, THEREFORE, in consideration of the mutual promises
contained
herein, the parties agree as
follows:
AGREEMENT
1. Addition of Section
2.8 Regarding Tax Election. The following new
Section 2.8 is hereby added
to the Purchase Agreement:
2.8 Tax Election.
2.8.1 Delivery of Election. Seller shall execute and
cause
his spouse to execute and place in the mail no later
than
November 17, 2003 an election pursuant to Section 338(h)(10)
of
the Code, providing for the sale of the Stock to be treated as
a
sale of assets for tax purposes (the "Election"). The
Election
shall be postmarked no later than November 17, 2003, shall
be
mailed by registered or
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certified mail, postage prepaid, and shall be addressed to
the
office of the United States Internal Revenue Service as
directed
by Buyer.
2.8.2 Allocation of Deemed Sale Price. The 338(h)(10)
election shall be based on and consistent with the
comprehensive
allocation of the aggregate deemed sale price prepared
pursuant
to this Section 2.8.2. After final determination of the amount
of
the adjustments under Sections 2.4 and 2.5 of this
Agreement,
Buyer shall prepare a comprehensive allocation of the
aggregate
deemed sale price, which allocation shall take into account
such
adjustments, and such other factors as are required by
applicable
Treasury Regulations or any corresponding provision of state
or
local law. Any disputes regarding Buyer's allocation shall
be
resolved in accordance with the dispute resolution procedures
set
forth in Section 10.15.
2.8.3 No Modifications to Election. Each of Buyer and
Seller
agre
