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Exhibit 10.14a
AMENDMENT TO STOCKHOLDERS AGREEMENT
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This Amendment is made as of September 30, 1997 by and among Unifrax
Corporation, a Delaware corporation, (the "Company"), BP Exploration (Alaska)
Inc., a Delaware corporation, ("BP") and Unifrax Holding Co., a Delaware
corporation, (the "Buyer").
WHEREAS, the Company, BP and the Buyer are parties to the Stockholders
Agreement dated as of October 30, 1996 (the "Agreement"); and
WHEREAS, the Company, BP and the Buyer desire to amend the Agreement
as set forth in this Amendment due to the Company's recent authorization of
preferred stock and proposal to issue shares of such preferred stock to BP and
the Buyer.
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. 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
Preferred Stock owned by BP or its Affiliates.
2. The definition of "Effective Percentage" as set forth in Section 1
of the Agreement is amended to read, in its entirety, as follows:
"Effective Percentage" means the number of shares of Common Stock
and Underlying Common Stock owned by BP divided by the total
number of outstanding shares of Common Stock and Underlying
Common Stock on a fully-diluted basis.
3. The definition of "Other Equity" as set forth in Section 1 of the
Agreement is amended to read, in its entirety, as follows:
"Other Equity" means equity securities of the Company (other than
Common Stock and Preferred Stock) and any options, warrants or
other rights to acquire, or convertible into or exchangeable for,
Common Stock, Preferred Stock or other equity securities of the
Company.
4. The following definition is added to Section 1 of the Agreement:
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"Preferred Stock" means, collectively, the preferred stock of
the Company having a par value of $.01 per share, the
relative rights, preferences and limitations of which are set
forth in the Certificate of Amendment of Certificate of
Incorporation of the Company, dated April 21, 1997.
5. The definition of "Public Offering" as set forth in Section 1 of
the Agreement is amended to read, in its entirety, as follows:
"Public Offering" means any sale of Common Stock or Preferred
Stock to the public pursuant to any offering registered under
the Securities Act.
6. The definition of "Underlying Common Stock" as set forth
in Section 1 of the Agreement is amended to read, in its entirety, as follows:
"Underlying Common Stock" means the Common Stock issued or
issuable pursuant to the Preferred Stock or other securities
containing granted options, conversion rights or other rights
to acquire any shares of Common Stock.
7. 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 seven
percent (7%) of the Company's total Common Stock, pursuant to
a Company 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 Buyer
prior to November 10, 1997, or (vii) the issuance of shares
of Common Stock in connection with a conversion of shares of
Preferred Stock into shares of Common Stock, if the Company
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
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Common Stock or Preferred Stock, the Company shall first offer
to sell to BP a portion of such stock or securities equal to
the Effective Percentage.
8. 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 Company elect to include in
the Public Offering all of the Common Stock and Preferred Stock
owned by BP to the extent any Common Stock or Preferred Stock
is covered in the Public Offering proposed by the Company. If
BP elects to include any of the Common Stock or Preferred Stock
owned by it in such Public Offering, it must elect to include
all of such Common Stock or Preferred Stock, as applicable.
9. 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 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).
10. Section 6 of the Agreement is amended to read, in its entirety,
as follows:
The Company will not authorize or issue Common Stock, Preferred
Stock or Other Equity, unless the price for, and terms of, such
Common Stock, Preferred Stock or Other Equity are reasonable
and established on a good faith basis.
11. Clause (ii) of the first sentence of Section 7(b) of the
Agreement is amended to read, in its entirety, as follows:
substantially all such cash, cash equivalents or
publicly-traded securities, or the cash received from the sale
or collection thereof, net
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of expenses and debt repayment, is to the extent feasible and
as soon as practicable distributed ratably to the holders of
Common Stock (subject to the rights of the holders of Preferred
Stock).
12. Clause (ii) of the first sentence of Section 8(a) of the
Agreement is amended to read, in its entirety, as follows:
Common Stock, Preferred Stock or Other Equity or debt sold to
Buyer or its Affiliates for cash consideration at fair market
value determined reasonably and good faith and subject, where
applicable, to BP's preemption rights under Section 3 above;
13. Clause (vi) is added at the end of the first sentence of Section
8(a) of the Agreement as follows:
or (vi) the original issuance of not more than 1,500 shares of
Preferred Stock to Buyer prior to November 10, 1997
14. 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 Preferred Stock, the redemption of all Preferred
Stock and the conversion of any outstanding shares of Preferred
Stock into shares of Common Stock are not considered to be
Related Party Transactions.
15. Section 9 of the Agreement is amended to read, in its entirety,
as follows:
The Company shall not, without the prior written consent of BP,
redeem any Common Stock, 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, Preferred Stock or Other
Equity held directly or indirectly by individuals
within the management group; or
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(iii) applies only to all outstanding shares of
Preferred Stock.
16. Section 10 of the Agreement is amended to read, in its entirety,
as follows:
After June 30, 1997, each certificate evidencing Common Stock
or Preferred Stock, and each certificate issued in exchange for
or upon the transfer of any Common Stock or Preferred Stock,
shall be stamped or otherwise imprinted with a legend in
substantially the following form:
The securities represented by this certificate are
subject to a Stockholders Agreement dated as of October
30, 1996, as amended, among the issuer of such
securities (the "Company") and all of the Company's
stockholders. A copy of such Stockholders Agreement
will be furnished without charge by the Company to the
holder hereof upon written request.
17. Section 12 of the Agreement is amended to read, in its entirety,
as follows:
Prior to transferring any Common Stock or Preferred Stock
(other than, in either case, in a Public Offering) to any
Person, the transferring Stockholder shall cause the
prospective transferee to execute and deliver to the Company
and the other Stockholders a counterpart of this Agreement.
18. 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
Preferred Stock (other than to Buyer or an Affiliate of Buyer)
by Buyer or any Affiliate of Buyer (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 Preferred Stock, as applicable, to be sold,
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assigned or otherwise transferred in the contemplated Transfer
equal to the percentage of Common Stock and Preferred Stock, as
applicable, then outstanding that are BP Shares. Buyer 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 Buyer and its Affiliates shall not
Transfer any shares of Common Stock or Preferred Stock to the
prospective transferee(s) if the prospective transferee(s)
declines to allow such participation of BP.
19. The reference to "Common Stock" in the first sentence of Section
14(b)(i) of the Agreement is changed to "Common Stock or Preferred Stock".
20. 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
Preferred stock, as applicable, held by BP times (2) the ratio
of the shares of Common Stock or Preferred Stock, as
applicable, proposed to be sold by Buyer and its Affiliates to
the total shares of Common Stock or Preferred Stock, as
applicable, owned by Buyer and its Affiliates.
21. The reference to "Common Stock" in Section 14(b)(ii) is changed
to "Common Stock or Preferred Stock, as applicable,".
22. The first sentence of 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 Preferred Stock in violation of any provision of this
Agreement shall be void, and the Company 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.
23. 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
Company and its
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successors and assignees and (b) the Stockholders and any
subsequent holders of Common Stock or Preferred Stock and the
respective successors and assigns of each of them, so long as
they hold Common Stock or Preferred Stock, as applicable.
24. Except as specifically set forth in this Amendment, the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, intending to be legally bound, the Company, BP
and the Buyer has executed this Amendment on the day and year first above
written.
UNIFRAX CORPORATION
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
BP EXPLORATION (ALASKA) INC.
By /s/▇. ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
UNIFRAX HOLDING CO.
By /s/▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
