1
Exhibit 4.2
AMENDMENT NO. 2 TO STOCKHOLDERS AGREEMENT
This Amendment is made as of October 4, 2000 by and among Unifrax
Corporation, a Delaware corporation (the "CORPORATION"), BP Exploration (Alaska)
Inc., a Delaware corporation ("BP"), and Unifrax Holding Co., a Delaware
corporation ("HOLDINGS").
WHEREAS, the Corporation, BP and Holdings are parties to the
Stockholders Agreement dated as of October 30, 1996, as amended as of September
30, 1997 (collectively, the "Agreement"); and
WHEREAS, the Corporation, BP and Holdings desire to amend the Agreement
as set forth in this Amendment as a consequence of the completion of the
transactions contemplated by that certain Stock and Asset Purchase Agreement by
and among the Corporation, Societe Europeenne de Produits Refractaries ("SEPR"),
and certain other parties, dated July 27, 2000 (the "PURCHASE AGREEMENT").
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Amendment, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Amendment
hereby agree as follows:
1. Holdings and BP, in their capacities as the sole shareholders of the
Corporation, hereby approve and adopt the Certificate of Amendment of the
Certificate of Incorporation of the Corporation in the form attached hereto as
EXHIBIT A (the "CERTIFICATE OF AMENDMENT") in accordance with Sections 228 and
242 of the Delaware General Corporation Law. In addition, BP hereby consents to
(a) the issuance of an aggregate of 20,500 shares of Series A Preferred Stock to
Holdings pursuant to the Preferred Stock Subscription Agreement in the form
attached hereto as EXHIBIT B (the "SUBSCRIPTION AGREEMENT"), and (b) the pledge
of such Series A Preferred Stock to SEPR pursuant to the Pledge Agreement in the
form attached hereto as EXHIBIT C. Simultaneously with the execution and
delivery hereof, (a) Holdings and BP shall surrender and deliver to the
Corporation the certificates representing all of their existing shares of
Preferred Stock in proper form for transfer, and (b) the Corporation will issue
and deliver to Holdings and BP certificates representing a like number of shares
of Series B Preferred Stock. In the event that the Corporation shall determine
to issue warrants to purchase Common Stock in connection with the issuance of
Series A Preferred Stock, all such warrants shall be issued to the stockholders
of the Corporation on a pro rata basis and at the same price.
2. The definition of "BP Shares" as set forth in Section 1 of the Agreement
is amended to read, in its entirety, as follows:
"BP Shares" means, collectively, all shares of Common Stock and Series
B Preferred Stock owned by BP or its Affiliates.
2
3. The definition of "Preferred Stock" as set forth in Section 1 of the
Agreement is amended to read, in its entirety, as follows:
"Preferred Stock" means, collectively, the Series A Preferred Stock
and the Series B Preferred Stock.
4. The following definitions are added to Section 1 of the Agreement:
"Series A Preferred Stock" means the preferred stock of the
Corporation designated as "Series A Preferred Stock" and having the
relative rights, preferences and limitations, in each case as set
forth in the Certificate of Incorporation.
"Series B Preferred Stock" means the preferred stock of the
Corporation designated as "Series B Preferred Stock" and having the
relative rights, preferences and limitations, in each case as set
forth in the Certificate of Incorporation.
5. The first sentence of Section 3(a) of the Agreement is amended to read,
in its entirety, as follows:
Except for (i) the issuance of shares of Common Stock representing, on
a fully diluted basis, not more than ten percent (10%) of the
Corporation's total Common Stock, pursuant to a Corporation Management
Option Plan, or (ii) in connection with a Public Offering, or (iii)
the issuance of Common Stock in connection with the acquisition of, or
a merger with, another corporation or business, or (iv) the issuance
of shares of Common Stock as a dividend on the outstanding Common
Stock that would not, after giving effect to the issuance of such
shares, affect the Effective Percentage, or (v) the original issuance
of not more than 166.67 shares of Preferred Stock to BP prior to
November 10, 1997, or (vi) the original issuance of not more than
1,500 shares of Preferred Stock to Holdings prior to November 10,
1997, or (vii) the issuance of shares of Common Stock in connection
with a conversion of shares of Series B Preferred Stock into shares of
Common Stock, or (viii) the original issuance of not more than 20,500
shares of Series A Preferred Stock to Holdings pursuant to the
Subscription Agreement, if the Corporation desires to sell or
otherwise issue any shares of Common Stock, any shares of Preferred
Stock or any securities containing options or rights to acquire any
shares of Common Stock or Preferred Stock, the Corporation shall first
offer to sell to BP a portion of such stock or securities equal to the
Effective Percentage.
6. Section 4(b) of the Agreement is amended to read, in its entirety, as
follows:
Within thirty (30) days after its receipt of a Registration Notice, BP
may by written notice to the Corporation elect to include in the
2
3
Public Offering all of the Common Stock and Series B Preferred Stock
owned by BP. If BP elects to include any of the Common Stock or Series
B Preferred Stock owned by it in such Public Offering, it must elect
to include all of such Common Stock or Series B Preferred Stock, as
applicable.
7. Section 4(d) of the Agreement is amended to read, in its entirety, as
follows:
The Corporation shall include in the registration all the BP Shares
which BP has elected to include pursuant to SECTION 4(b).
8. Section 5(g) of the Agreement is amended to read, in its entirety, as
follows:
If BP sells less than all of the Common Stock owned by it in a Public
Offering, then the Target Value shall be reduced by multiplying it by
a fraction, the numerator of which is the number of shares of the
Common Stock owned by BP and sold in such Public Offering and the
denominator of which is the number of shares of the Common Stock owned
by BP as of the date of this Agreement, plus the number of shares of
Common Stock received by BP after the date of this Agreement in
connection with the conversion of shares of Series B Preferred Stock
(all of such shares included in such denominator to be adjusted for
any stock splits, reverse stock splits, stock dividends or similar
events occurring after they are issued to BP).
9. Clause (v) of the first sentence of Section 8(a) of the Agreement is
amended to read, in its entirety, as follows:
a structuring fee in the amount of one percent (1%) of (x) in the case
of each acquisition of the stock or assets of a business of any third
party by the Corporation or any of its Affiliates, the purchase price
associated with such acquisition, and (y) in the case of a transaction
in which (i) all or most of the assets of the Corporation and its
Affiliates, taken together, are sold to any unaffiliated third party,
(ii) all or most of the capital stock of Holdings or the Corporation
is sold to any unaffiliated third party, (iii) a Public Offering, or
(iv) Kirtland Capital Partners II LP, together with all Affiliates
thereof (collectively, "KCP") shall, by virtue of a merger or other
similar transaction, cease to own or control (directly or indirectly)
more than fifty percent (50%) of the voting share capital of Holdings
or the Corporation or shall cease to have the right to appoint or
remove directors having a majority of the voting rights exercisable at
meetings of the board of directors of Holdings or the Corporation, the
Corporation's then existing enterprise value (it being understood that
the fee payable pursuant to clause (y) shall be paid only once and
shall be computed using the Corporation's then existing enterprise
value even if KCP shall, following the
3
4
completion of such transaction, continue to own an interest in
Holdings or the Corporation).
10. Clause (vii) is added at the end of the first sentence of Section 8(a)
of the Agreement as follows:
or (vii) the original issuance of not more than 20,500 shares of
Series A Preferred Stock to Holdings pursuant to the Subscription
Agreement.
11. The last sentence of Section 8(a) is amended to read, in its entirety,
as follows:
For the avoidance of doubt, dividends declared and paid ratably from
time to time to all holders of Common Stock, cash dividends declared
and paid ratably from time to time to all holders of the Series A
Preferred Stock or all holders of the Series B Preferred Stock, the
redemption of any Preferred Stock and the conversion of any
outstanding shares of Series B Preferred Stock into shares of Common
Stock are not considered to be Related Party Transactions.
12. Section 8(c) of the Agreement is amended to read, in its entirety, as
follows:
The Corporation shall be entitled to make payments to Holdings and its
Affiliates, including payments under the Advisory Services Agreement
dated as of the date of this Agreement, provided, however, that
aggregate payments or transfers by the Corporation to Holdings and its
Affiliates (other than payments and transfers permitted pursuant to
Sections 8(a)(ii), (iii), (iv), (v), (vi), (vii) and the last sentence
of Section 8(a)) shall in no event exceed Five Hundred Thousand
Dollars ($500,000) in any calendar year.
13. Section 9 of the Agreement is amended to read, in its entirety, as
follows:
The Corporation shall not, without the prior written consent of BP,
redeem any Common Stock, Series B Preferred Stock or Other Equity
unless such redemption:
(i) applies only to Common Stock, and ratably to the shares
of Common Stock owned by BP as a percentage of all
outstanding shares of Common Stock; or
(ii) is of Common Stock, Series B Preferred Stock or Other
Equity held directly or indirectly by individuals within the
management group; or
(iii) applies only to all outstanding shares of Series B
Preferred Stock.
4
5
14. Paragraph (a) of Section 14 of the Agreement is amended to read, in its
entirety, as follows:
In the event of a proposed Transfer of Common Stock or Series B
Preferred Stock (other than to Holdings or an Affiliate of Holdings)
by Holdings or any Affiliate of Holdings (the "TRANSFERRING
STOCKHOLDER"), the Transferring Stockholder shall deliver a written
notice (the "SALE NOTICE") to BP, specifying in reasonable detail the
identity of the proposed transferee(s) and the terms and conditions of
such Transfer. BP may elect to participate in the contemplated
Transfer by delivering written notice to the Transferring Stockholder
within 15 days after receipt by BP of the Sale Notice. If BP elects to
participate in such Transfer, BP will be entitled to sell in the
contemplated Transfer, at the same price and on the same terms as the
Transferring Stockholder, a percentage of the Common Stock and Series
B Preferred Stock, as applicable, to be sold, assigned or otherwise
transferred in the contemplated Transfer equal to the percentage of
Common Stock and Series B Preferred Stock, as applicable, then
outstanding that are BP Shares. Holdings shall use its best efforts to
obtain the agreement of the prospective transferee(s) to the
participation in any contemplated Transfer, to the extent BP elects to
participate in the manner set forth above, and Holdings and its
Affiliates shall not Transfer any shares of Common Stock or Series B
Preferred Stock to the prospective transferee(s) if the prospective
transferee(s) declines to allow such participation of BP.
15. The reference to "Common Stock" in the first sentence of Section
14(b)(i) of the Agreement is changed to "Common Stock or Series B Preferred
Stock".
16. The last sentence of Section 14(b)(i) of the Agreement is amended to
read, in its entirety, as follows:
BP Shares shall be included in such sale in an amount equal to the
product of (1) the number of shares of Common Stock or Series B
Preferred Stock, as applicable, held by BP times (2) the ratio of the
shares of Common Stock or Series B Preferred Stock, as applicable,
proposed to be sold by Holdings and its Affiliates to the total shares
of Common Stock or Series B Preferred Stock, as applicable, owned by
Holdings and its Affiliates.
17. The reference to "Common Stock" in Section 14(b)(ii) of the Agreement
is changed to "Common Stock or Series B Preferred Stock, as applicable".
18. Section 15 of the Agreement is amended to read, in its entirety, as
follows:
Any actual or attempted sale, transfer, assignment, pledge or other
encumbrance or disposition of any shares of Common Stock or
5
6
Series B Preferred Stock in violation of any provision of this
Agreement shall be void, and the Corporation shall not record such
transfer on its books or treat any purported transferee of such shares
as the owner of such shares for any purpose. Any transferee of Common
Stock or Series B Preferred Stock, other than of BP Shares, shall be
deemed to be included in the definition of "Holdings" under this
Agreement.
19. The first sentence of Section 20 of the Agreement is amended to read,
in its entirety, as follows:
Except as otherwise provided herein, this Agreement shall bind and
inure to the benefit of, and be enforceable by, (a) the Corporation
and its successors and assignees and (b) Holdings and BP and any
subsequent holders of Common Stock or Series B Preferred Stock and the
respective successors and assigns of each of them, so long as they
hold Common Stock or Series B Preferred Stock, as applicable.
20. The address for BP contained in Section 23 of the Agreement is amended
to read, in its entirety, as follows:
BP Chemicals Inc.
Attn: Controller, Nitriles BU Room 605-1560
000 Xxxx Xxxxxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
21. Except as specifically set forth in this Amendment, the Agreement shall
remain in full force and effect.
[BALANCE OF PAGE LEFT BLANK INTENTIONALLY]
6
7
IN WITNESS WHEREOF, intending to be legally bound, the Corporation, BP and
Holdings has executed this Amendment on the day and year first written above.
UNIFRAX CORPORATION
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
BP EXPLORATION (ALASKA) INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Corporate Secretary
UNIFRAX HOLDING CO.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
