STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of January 30, 1998, by and among
Refraco Inc., a Delaware corporation (the "Company"), The Alpine Group,
Inc., a Delaware corporation ("Alpine"), Minerals Trading, Inc., a
Delaware corporation ("MTI"), and Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxx
Xxxxxx and Xxxxxxx Xxxxx (collectively, the "Individual Refraco
Stockholders" and, together with Alpine and MTI, the "Stockholders").
W I T N E S S E T H :
WHEREAS, concurrently with the execution and delivery of
this Agreement, the Company is acquiring American Premier Holdings, Inc., a
Delaware corporation ("APHI"), through the statutory merger of APHI with
and into the Company (the "Merger"), pursuant to which MTI and the
Individual Refraco Stockholders (collectively, the "Minority Stockholders")
are acquiring shares of Class B common stock, par value $.01 per share (the
"Class B Common Stock"), of the Company upon the terms and conditions set
forth in the merger agreement, dated as of January 18, 1998, by and among
Alpine, the Company, APHI and the Minority Stockholders the "Merger
Agreement"); and
WHEREAS, Alpine, which currently holds all of the issued
and outstanding shares of common stock, par value $.01 per share (the
"Ordinary Common Stock" and, together with the Class B Common Stock, the
"Common Stock"), of the Company, and the Minority
Stockholders desire to enter into this Stockholders Agreement for the purpose
of regulating certain aspects of their relationship as stockholders of the
Company; and
WHEREAS, it is in the best interests of the Company and the
Stockholders that such aspects of their relationship be so regulated;
NOW, THEREFORE, in consideration of the foregoing, the
mutual covenants and agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Section 1. DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings (such meanings being
equally applicable to both the singular and plural form of the terms
defined).
"Affiliate"of a Person means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, the first mentioned Person.
"Agreement" means this Stockholders Agreement, including
all amendments, modifications and supplements hereto and any exhibits or
schedules to any of the foregoing, and shall refer to this Agreement as the
same may be in force and effect at the time such reference becomes operative.
"By-Laws" means the By-Laws of the Company, as the same may be in
force and effect as of the date hereof.
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"Certificate of Incorporation" means the Certificate of
Incorporation of the Company, as the same may be in force and effect as of
the date hereof.
"Closing" means the closing of the Merger, which shall occur on the
date hereof.
"Convertible Securities" means any evidences of indebtedness,
shares (other than Common Stock) or other securities convertible into or
exchangeable for Common Stock.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any Person exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Person"means an individual, corporation, partnership, association,
trust or any unincorporated organization.
"Put Right" means the right of each of the Minority Stockholders
to elect to sell to the Company shares of Class B Common Stock on the terms
and conditions set forth in the Certificate of Incorporation.
"Registration Rights Agreement" means that certain agreement, dated
as of the date hereof, by and among the Company, Alpine and the Minority
Stockholders pursuant to which the Company grants the Minority Stockholders
certain registration rights.
"Rule 144 Sales" means open market sales pursuant to Rule 144
under the Securities Act (or any successor rule or regulation).
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"Securities Act" means the Securities Act of 1933, as
amended.
Section 2. Certain Agreements.
2.1 Board of Directors. Each Stockholder shall vote (or shall cause
to be voted) all of the shares of Common Stock owned or controlled by such
Stockholder (including any shares of Common Stock hereafter acquired), at any
regular or special meeting of stockholders of the Company, shall take all
action by written consent in lieu of such meeting of stockholders, and shall
take all other actions necessary, to ensure:
(a) that the Board of Directors of the Company shall consist
of such number of directors as may be determined by Alpine in its sole
discretion (which number shall be greater than or equal to 10 so long as
Alpine owns at least 80% of the outstanding Common Stock and the Minority
Stockholders have their rights to designate board members hereunder); and
(b) that there shall be elected as members of the Board
of Directors:
(i) one individual designated by MTI;
(ii) one individual designated by the Individual
Refraco Stockholders collectively, as determined by the vote or consent of
the Individual Refraco Stockholders holding a majority of the Common Stock
held in the aggregate by all of the Individual Refraco Stockholders; and
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(iii) the individuals designated by Alpine to fill
the remaining directorships.
2.2 Removal. Any or all of the directors may be removed at any
time, either with or without cause, by the affirmative vote or action by
written consent of holders of a majority of the then outstanding Common Stock
in accordance with the By-Laws; provided, however, that any director
designated by MTI pursuant to the provisions of Section 2.1(b)(i) and any
director designated by the Individual Refraco Stockholders collectively
pursuant to the provisions of Section 2.1(b)(ii) may be removed at such time
and in such manner only with cause and otherwise may be removed only by the
party that designated such director.
2.3 Vacancies. In the event that a vacancy is created on the Board
of Directors of the Company by the death, disability, retirement, resignation
or removal (with or without cause) of a director, or otherwise there shall
exist or occur any vacancy on the Board of Directors of the Company, each
Stockholder hereby agrees to use its or his best efforts to cause the
remaining directors to vote or take action by written consent, in accordance
with the By-Laws, for the election of a nominee to be designated by the
entity or group which had designated or was entitled to designate the
director whose position has become vacant, provided that such designee was
not previously a director of the Company or any of its Affiliates who was
removed for cause from the Board of Directors of the Company or any of its
Affiliates.
2.4 No Proxies. Each Stockholder covenants and agrees that, except
(i) as a result of transfers expressly permitted by, and pursuant to and in
accordance with, this
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Agreement and (ii) as otherwise provided in the last sentence of Section 2.5
hereof, such Stockholder will have sole voting power with respect to such
Stockholder's Common Stock and will not grant any proxy with respect to such
Common Stock, enter into any voting trust or other voting agreement or
arrangement with respect to such Common Stock or grant any other rights to
vote such Common Stock other than the agreement to vote such Common Stock set
forth herein.
2.5 Further Assurances. In order to effectuate the provisions of
this
Section 2, the Stockholders hereby agree that when any action or vote is
required to be taken by such Stockholders pursuant to this Agreement, such
Stockholders shall use their respective best efforts to call, or cause the
appropriate officers and directors of the Company to call, a special or
annual meeting of stockholders of the Company, as the case may be, or execute
or cause to be executed a consent in writing in lieu of any such meetings in
accordance with the General Corporation Law of the State of Delaware, to
effectuate such action. In addition, if any Stockholder shall fail to vote as
required by the specific terms of this Section 2, such Stockholder shall be
deemed to have irrevocably constituted and appointed the other Stockholders
as his proxy coupled with an interest to vote such Stockholder's Common Stock
on a pro rata basis in accordance with the terms of this Section 2.
2.6 Affiliate Transactions. During the term of this Agreement,
(a) Alpine will continue to provide to Refraco the same level of staff
support for corporate and administrative services that is currently being
provided, on a basis consistent with past practice using existing
staff and replacements thereof, but there shall be no charge by Alpine
to Refraco for such staff support (other than for out-of-pocket costs
reasonably incurred in connection therewith and
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the cost for employees of Alpine who devote substantially all their business
time to Refraco) and (b) neither Alpine nor any of its Affiliates (other than
any of Refaco's Subsidiaries) shall enter into any agreement or arrangement
with Refraco or any of its Subsidiaries other than as contemplated by this
Agreement, except for agreements or arrangements on an arm's length basis at
rates or charges to Refraco or its Subsidiaries that are not less favorable
than could be obtained by them from an unrelated third party. In connection
with the administration of any insurance maintained by Alpine both for
Refraco and for Alpine and other Subsidiaries of Alpine, Alpine shall submit
and prosecute claims and otherwise provide such administration in a fair and
equitable manner and shall not intentionally take any action in connection
therewith that would give a preference or advantage to Alpine or to one
Subsidiary over another under circumstances when Alpine has the ability to
act in an manner that would not provide such a preference or advantage.
Alpine shall purchase excess general liability insurance in the amount of $10
million for the benefit of Refraco.
Section 3. Restrictions on Transfer of Shares of the Company.
3.1 Transfer Restricted.
3.1.1 No Common Stock, or any interest therein, shall be
sold, assigned, transferred, pledged or otherwise encumbered or disposed of,
directly or indirectly, except in accordance with the provisions of this
Agreement or as required by applicable law. The Company shall not transfer
upon its books and records any shares of Common Stock purported to be
transferred to any Person in violation of this Agreement.
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3.1.2 In addition to each other restriction on transfer
contained in this Agreement, except for Rule 144 Sales, a sale of
shares in a public offering and a transfer to the Company, no Stockholder
shall sell, assign, transfer, pledge or otherwise encumber or dispose of
any shares of Common Stock or any interest therein to any Person
(regardless of the manner in which such Stockholder initially acquired such
Common Stock), unless (a) the certificates representing the shares issued
to the transferee bear appropriate legends reflecting the
restrictions on transfer contained in this Agreement substantially
to the following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE PROVISIONS OF A STOCKHOLDERS AGREEMENT DATED AS OF JANUARY 30,
1998 (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY) AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT."
and (b) the transferee shall have executed and delivered to the Company, as a
condition to its acquisition of the Common Stock, an appropriate document
confirming that such transferee takes such shares subject to all the terms
and conditions of this Agreement.
3.1.3 In addition to each other restriction on transfer
contained in this Agreement, no Stockholder shall sell, assign, transfer,
pledge or otherwise encumber or dispose of any shares of Common Stock, or any
interest therein, to any Person unless such sale, assignment, transfer,
pledge or other encumbrance or disposition is pursuant to an effective
registration statement under the Securities Act and under applicable state
securities laws or an exemption from such registration is available.
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3.1.4 The restrictions on transfer contained in this
Agreement are in addition to, and not in limitation of, each other
restriction on transfer contained in the Merger Agreement.
3.2 Certain Permitted Transfers. Notwithstanding anything in
this Agreement to the contrary, the restrictions contained in Section 3.3
of this Agreement shall not apply to the transfers of Common Stock described
in clauses (a), (b) and (c) below and the restrictions contained in
Sections 3.4, 3.5 and 3.6 of this Agreement shall not apply to transfers of
Common Stock described in any of the following clauses:
(a) any transfer to a legal representative in the
event any Stockholder who is an individual becomes mentally
incompetent;
(b) any transfer by Alpine to a corporation or other entity that
owns, directly or indirectly, 100% of the equity of Alpine (an "Alpine
Parent") or to any wholly-owned direct or indirect subsidiary of such
Alpine Parent (an "Alpine Controlled Subsidiary"), it being
understood with respect to such Alpine Controlled Subsidiary that
the later sale, liquidation or spin-off of such Alpine Controlled
Subsidiary or other transaction in which the Alpine Parent ceases to
control, directly or indirectly, 100% of the equity of the Alpine
Controlled Subsidiary would constitute an indirect sale of Common
Stock, which sale may only be made in compliance with the terms and
restrictions set forth in this Agreement;
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(c) any pledge by Alpine of the shares of Common Stock owned by it
to any lender or trustee under any credit agreements or indentures
with respect to borrowed money of Alpine or the Company;
(d) any transfer without consideration by a Stockholder who is
an individual to the spouse or issue of such Stockholder or to a
trust of which there are no principal beneficiaries other than such
Stockholder or the spouse or issue of such Stockholder;
(e) any transfer by a Stockholder that is not an individual
to a corporation or other entity that owns, directly or indirectly,
100% of the equity of such entity (a "Parent") or to any
wholly-owned direct or indirect subsidiary of such Parent (a
"Controlled Subsidiary"), it being understood with respect to such
Controlled Subsidiary that the later sale, liquidation or spin-off of
such Controlled Subsidiary or other transaction in which the Parent
ceases to control, directly or indirectly, 100% of the equity of the
Controlled Subsidiary would constitute an indirect sale of Common
Stock, which sale may only be made in compliance with the terms and
restrictions set forth in this Agreement;
(f) any transfer between Stockholders; or
(g) any transfer by a Stockholder to the Company pursuant to any
agreement between the Company and such Stockholder;
provided that in the cases of (a) through (f), each transferee agrees in
writing to take such Common Stock subject to, and to comply with, the
restrictions on transfer contained in this
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Agreement. In addition, none of the restrictions on transfers of Common
Stock contained in this Agreement shall apply to a transfer by a Stockholder
who is an individual upon his death, by will, by the laws of descent or by
operation of law, except that any such transfer shall be subject to the
requirements of Section 3.1.2 of this Agreement. Any transfer of Common
Stock pursuant to and in compliance with this Section 3.2 shall be a
permitted transfer under this Agreement, and any transferee of Common
Stock pursuant to and in compliance with this Section 3.2 (other than
the Company) is herein referred to as a "Permitted Transferee." Each
Permitted Transferee, if not previously a Minority Stockholder, shall,
upon consummation of the transfer, be deemed a Minority Stockholder for
purposes of this Agreement.
3.3 Holding Periods.
3.3.1 Each Minority Stockholder shall not sell,
exchange, distribute or otherwise dispose of, or reduce the risk of loss by
short sale or otherwise with respect to, any of its or his shares of Common
Stock, or enter into any contract or arrangement with respect to any of the
foregoing matters, during the period commencing on the date of the Closing
and ending on the thirty-third monthly anniversary thereof, except (i) for
transfers described in Section 3.2(a) of this Agreement or the third from
last sentence of Section 3.2 of this Agreement, (ii) pursuant to Section 3.5
or 3.6 of this Agreement, (iii) pursuant to the terms of the Registration
Rights Agreement, (iv) pursuant to the terms of the Guaranty (as defined in
the Merger Agreement), (v) pursuant to the exercise of the Put Right
following acceleration, if any, of such right as provided in the Certificate
of Incorporation, or (vi) by reason of a transaction described in clause (z)
of Section 3.3.2.
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3.3.2 Except for transfers permitted under Section 3.2 of
this Agreement, Alpine agrees that it will not, and will not enter into any
contract or agreement or adopt any resolution to (a) sell, exchange,
distribute or otherwise dispose of, or reduce the risk of loss by short sale
or otherwise with respect to, any of its equity interest in the Company or
the capital stock of American Premier Inc., APHI's wholly-owned subsidiary
("API"), or enter into any contract or arrangement with respect to any of the
foregoing matters, or (b) cause or permit the Company to liquidate or to
sell, exchange, distribute or otherwise dispose of any of the assets of API
(other than in the ordinary course of its business and except for transfers
to a wholly-owned subsidiary of the Company) during the period commencing on
the date hereof and ending on the second anniversary of the date hereof;
provided, however, that nothing herein will prevent Alpine from (x)
responding to, negotiating with respect to or completing a transaction
resulting from, an unsolicited offer received prior to that time which the
Board of Directors of Alpine determines is necessary in order to comply with
its fiduciary obligations to Alpine's public shareholders, (y) causing the
merger of API, API Technologies and Adience, or (z) causing the acquisition
of the Company in a transaction that qualifies as a reorganization within the
meaning of Section 368(a)(1) of the Internal Revenue Code of 1986, as amended
(the "Code"), in which the shareholders of the Company receive solely stock
of the acquiring corporation as consideration for their capital stock of the
Company and that does not affect the treatment for tax purposes of the
Split-Off as a tax free distribution to MTI under Section 355(a) of the Code
and the Merger as an "A" reorganization under Section 368(a)(1)(A) of the
Code.
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3.4 First Offer Rights. The Minority Stockholders may sell
or otherwise transfer Common Stock only in compliance with the provisions of
this Section 3.4 and Section 3.3.1 of this Agreement, except for sales and
transfers permitted by the exceptions to Section 3.3.1.
3.4.1 Any Minority Stockholder desiring to sell or
otherwise transfer Common Stock in compliance with this Section 3.4 (a
"Selling Stockholder") shall first deliver written notice to Alpine, the
Company and the other Minority Stockholders (the "Notice of Offer"), which
Notice of Offer shall specify: (i) the number of shares of Common Stock owned
by the Selling Stockholder which such Selling Stockholder wishes to sell (the
"Offered Shares"); (ii) the proposed cash purchase price per share of the
Offered Shares (the "Offer Price"); and (iii) the name of the prospective
purchaser and all other material terms and conditions of the offer. The
Notice of Offer shall constitute an irrevocable offer by the Selling
Stockholder to sell to the other Stockholders the Offered Shares at the Offer
Price, as hereinafter provided.
3.4.2 Within 15 days following their receipt of the Notice
of Offer, each of the Minority Stockholders other than the Selling
Stockholder (the "Retaining Stockholders") shall notify the Company, Alpine,
the Selling Stockholder and the other Minority Stockholders in writing as to
the number of Offered Shares, if any, up to his or its pro rata portion of
the Offered Shares (based on the number of shares of Common Stock owned by
such Retaining Stockholder compared to the number of shares of Common Stock
owned by all Retaining Stockholders), that it or he is electing to purchase
(such notification is hereinafter referred to as the "Stockholder's
Acceptance" and each Retaining Stockholder electing to purchase Offered
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Shares is hereinafter referred to as an "Accepting Stockholder"). If any
Retaining Stockholder does not provide a Stockholder's Acceptance to the
Company, Alpine, the Selling Stockholder and the other Minority Stockholders
within such 15-day period, such Retaining Stockholder shall be deemed to have
declined to purchase any of the Offered Shares. A Stockholder's Acceptance
shall be deemed to be an irrevocable commitment to purchase at the Offer
Price from the Selling Stockholder the number of Offered Shares which such
Accepting Stockholder has elected to purchase pursuant to its or his
Stockholder's Acceptance.
3.4.3 If any Retaining Stockholder fails to exercise his right
to purchase his full pro rata portion of the Offered Shares, each of the
Accepting Stockholders who has exercised his right to purchase his full pro
rata portion of the Offered Shares shall have an additional five days after
the expiration of such 15-day period in which to give to the Selling
Stockholder and to the other Accepting Stockholders who have exercised their
right to purchase their full pro rata portion of the Offered Shares further
notice (the "Further Notice") of his election to purchase all or a part of
the Offered Shares that the Retaining Stockholders have not theretofore
elected to purchase (the "Remaining Shares"). Each Further Notice shall state
the number of additional shares which the Stockholder giving the Further
Notice elects to purchase. The Remaining Shares shall be apportioned among
those Stockholders who have given a Further Notice as follows:
(a) Each Stockholder who has given a Further Notice and who has
not yet been apportioned that number of additional shares that
he elected to purchase in his Further Notice (a "Participating
Stockholder") shall be apportioned the lesser of (i) that number
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of additional shares that he elected to purchase in his Further Notice
and which he has not yet been apportioned pursuant to this Section
3.4.3(a) or (ii) his Pro Rata Portion of the Unpurchased Shares,
whichever is lesser.
(b) If the apportionment in Section 3.4.3(a) is followed and
there remain at least one Participating Stockholder and any Unpurchased
Shares, the procedure described in Section 3.4.3(a) shall be repeated.
(c) For purposes of this Section 3.4.3, "Unpurchased Shares" shall
be the Remaining Shares that have not yet been apportioned to
Participating Stockholders pursuant to Section 3.4.3(a), and a
Participating Stockholder's "Pro Rata Portion" of the Unpurchased
Shares shall be the number of Unpurchased Shares multiplied by the
fraction determined by dividing the number of shares of Common Stock
that such Participating Stockholder held on the date the Company
received the Notice of Offer by the number of shares of Common Stock
that all of the Participating Stockholders held on the date the Company
received the Notice of Offer.
3.4.4 If the Retaining Stockholders do not elect to purchase
all of the Offered Shares available for purchase under this Section 3.4,
Alpine shall, within 30 days following the Company's receipt of the Notice of
Offer, notify the Company and the Selling Stockholder in writing as to the
number of remaining Offered Shares, if any, it is electing to purchase (such
notification is hereinafter referred to as the "Alpine Acceptance"). If
Alpine does not provide the Alpine Acceptance to the Company and the Selling
Stockholder within such
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30-day period, Alpine shall be deemed to have declined to purchase any of the
Offered Shares. The Alpine Acceptance shall be deemed to be an irrevocable
commitment to purchase from the Selling Stockholder at the Offer Price the
number of Offered Shares which Alpine has elected to purchase pursuant to the
Alpine Acceptance.
3.4.5 If the Retaining Stockholders and Alpine do not elect
to purchase all of the Offered Shares available for purchase under this
Section 3.4, the Selling Stockholder (a) shall be under no obligation to sell
any of the Offered Shares to any Stockholder, unless the Selling Stockholder
so elects, and (b) may, within a period of 180 days from the date of the
Notice of Offer, and subject to the terms and conditions of this Section
3.4.5, sell any or all of the Offered Shares to one or more third parties
(each a "Third Party Transferee") for cash at a price per share not less than
the Offer Price, and on such other terms and conditions as are no more
favorable to the proposed Third Party Transferee than those specified in the
Notice of Offer. Upon any such sale, the Third Party Transferee of such
Offered Shares shall execute an agreement in form and substance reasonably
satisfactory to the Company and the Stockholders pursuant to which such Third
Party Transferee agrees that the Offered Shares it is acquiring from the
Selling Stockholder are subject to the provisions of this Agreement. Any
Third Party Transferee to whom Offered Shares are transferred pursuant to and
in compliance with this Section 3.4.5 shall, with respect to such shares upon
consummation of such transfer, be deemed a Minority Stockholder. If the
Selling Stockholder does not complete the sale of the Offered Shares within
such 180-day period, the provisions of this Section 3.4 shall again apply,
and no
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sale of such Offered Shares by the Selling Stockholder shall be made
otherwise than in accordance with the terms of this Agreement.
3.4.6 The closing of purchases of Offered Shares by the
Accepting Stockholders and/or Alpine pursuant to this Section 3.4 shall
take place no later than 45 days after the date of the Notice of Offer, at
10:00 A.M. local time at the principal offices of the Company, or at such
other date, time or place as the parties to the sale may agree. At least
five business days prior to such closing, the Company shall notify the
Selling Stockholder in writing of the names of the purchasers and the portion
of the Offered Shares to be purchased by each. At such closing, the Selling
Stockholder shall sell, transfer and deliver to each purchaser its or his
full right, title and interest in and to the Offered Shares so
purchased by such purchaser, free and clear of all liens, security
interests, adverse claims or restrictions (other than those contained
herein) of any kind and nature, and shall deliver to each purchaser
a certificate or certificates representing the Offered Shares sold
to such purchaser, in each case duly endorsed for transfer or accompanied by
appropriate stock transfer powers duly endorsed, and any other documents
necessary for transfer. Simultaneously with the delivery of such
certificates, each purchaser of the Offered Shares shall deliver to the
Selling Stockholder, by wire transfer of immediately available funds to such
bank account as the Selling Stockholder shall designate, a cash amount
equal to the product of the Offer Price and the number of Offered Shares
being acquired by such purchaser, in full payment of the purchase price of
the Offered Shares purchased.
3.5 Right to Join in Sale.
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3.5.1 If Alpine proposes in a single transaction or series
of related transactions permitted by Section 3.3.2 and the other
terms and provisions of this Agreement to transfer all or a portion of
the Common Stock held by it to one or more third parties (a "Transaction"),
then Alpine shall refrain from effecting a Transaction unless, prior to the
consummation thereof, the Minority Stockholders shall have been afforded
the opportunity to join in such Transaction on a pro rata basis, as
hereinafter provided. Any purported transfer by Alpine subject to this
Section 3.5 not made in compliance with this Section 3.5 shall be void and
shall not be consummated upon the books and records of the Company.
3.5.2 Prior to the consummation of any Transaction, Alpine
shall cause each person or persons that propose to acquire Common
Stock in the Transaction (the "Proposed Purchasers") to offer (the
"Purchase Offer") in writing to purchase from the Minority Stockholders
that number of shares of Common Stock from each such Minority Stockholder
that constitutes the same percentage of the aggregate number of shares of
Common Stock held by each such Minority Stockholder as the percentage
determined by dividing the number of shares of Common Stock to be purchased
from Alpine by the aggregate number of shares of Common Stock held by
Alpine, at the same price per share, and on such other terms and
conditions, as the Proposed Purchaser has offered to purchase the Common
Stock to be sold by Alpine. Each of the Minority Stockholders shall have 15
days from the receipt of the Purchase Offer in which to accept the
Purchase Offer and, to the extent any such Minority Stockholder accepts
such Purchase Offer in accordance with the terms hereof, the number of
shares of Common Stock to be sold by Alpine shall be reduced.
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3.5.3 The provisions of this Section 3.5 shall not apply to
(w) Rule 144 Sales by Alpine otherwise permitted by this Agreement, (x) a
sale by Alpine of shares in a public offering (it being understood that
nothing herein shall limit the Minority Stockholders' rights under the
Registration Rights Agreement) and (y) transfers by Alpine to Permitted
Transferees in accordance with Section 3.2. Alpine shall notify any
third party transferee that the transfer of Common Stock pursuant to
this Section 3.5 is subject to this Agreement and shall ensure that no
Transaction is consummated without compliance with this Section 3.
3.6 Right to Require Sale.
3.6.1 If Alpine proposes in a single transaction or series
of related transactions permitted by Section 3.3.2 and the other
terms and provisions of this Agreement to transfer all of the shares of
Common Stock held by it to one or more third parties, then Alpine shall have
the right to require each of the Minority Stockholders, upon 15 days'
written notice, to sell all of its or his shares of Common Stock to such
third party(ies) at the same price per share (the "Drag-Along Price"), and on
such other terms and conditions, as such third party(ies) has offered to
purchase the Common Stock to be sold by Alpine, provided that the Drag-Along
Price equals or exceeds the price then payable by the Company upon
exercise of the Put Right (assuming the Put Right were accelerated if
it is not otherwise then exercisable); provided, however, that if the
Drag-Along Price is not payable solely in cash or marketable securities or a
combination thereof, then in connection with any such transaction
or transactions, Alpine shall provide to the Minority Stockholders the
right to require Alpine to purchase from the Minority Stockholders the
consideration received in such transaction or transactions other than
cash or
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marketable securities on terms and conditions that are substantially
equivalent to the terms of the Put Right and the Accelerated Put Right (as
defined in the Guaranty by Alpine in favor of the Minority Stockholders
entered into on the date hereof).
3.6.2 The provisions of this Section 3.6 shall not apply to
(w) Rule 144 Sales by Alpine otherwise permitted by this Agreement, (x) a
sale by Alpine of shares in a public offering (it being understood that
nothing herein shall limit the Minority Stockholders' rights under the
Registration Rights Agreement) and (y) transfers to Permitted Transferees in
accordance with Section 3.2. Alpine shall notify any third party transferee
that the transfer of Common Stock pursuant to this Section 3.6 is subject to
this Agreement and shall ensure that no Transaction is consummated without
compliance with this Section 3.
Section 4. Preemptive Rights. The Company hereby grants to each of
the Minority Stockholders a preemptive right to purchase all or any part
of such Minority Stockholder's "pro rata share" (as defined in this
Section 4) of any "New Securities" (as defined in this Section 4) that the
Company may, from time to time, propose to sell or issue. Such preemptive
right shall be subject to the following provisions of this Section 4.
4.1 "Pro Rata Share." A Minority Stockholder's "pro rata share,"
for purposes of this Section 4, is the ratio that (i) the number of shares of
Common Stock then held by such Minority Stockholder bears to (ii) the total
number of shares of Common Stock then held by all Stockholders.
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4.2 "New Securities." "New Securities" shall mean any shares
of capital stock of the Company, whether now authorized or not, and any
rights, options or warrants to purchase such shares, and any Convertible
Securities of any type whatsoever; provided, however, that "New Securities"
shall not include (i) securities offered to the public generally pursuant to
an effective registration statement under the Securities Act, (ii) securities
issued pursuant to a merger, purchase of shares, purchase of assets or other
reorganization whereby the Company acquires not less than 20% of the voting
power of another corporation, (iii) Common Stock issued to officers,
directors or employees of, or independent consultants to, the Company
pursuant to stock options granted or other employee benefit plans adopted
after the date hereof on terms approved by the Board of Directors of the
Company (including a majority of the members of the Board of Directors who
are not officers or employees of the Company (or any relative thereof)), (iv)
shares of the Company's capital stock issued pursuant to any rights or
agreements, including, without limitation, Convertible Securities, provided
that the preemptive rights established by this Section 4 apply with respect
to the initial sale or grant by the Company of such rights or agreements, or
(v) shares of the Company's capital stock issued in connection with any stock
split, stock dividend or recapitalization by the Company.
4.3 Procedure. In the event that the Company proposes to undertake
an issuance of New Securities, the Company shall give each Minority
Stockholder written notice of its intention (the "Original Notice"),
describing the type of New Securities and the price and material terms upon
which the Company proposes to issue the same. Each Minority Stockholder shall
have 15 days from the date any such Original Notice is given to agree to
purchase all or any
21
part of its pro rata share of such New Securities for the price and upon the
general terms specified in the Original Notice by giving written notice to
the Company and stating therein the quantity of New Securities to be
purchased. In the event that one or more, but not all, of the Minority
Stockholders exercises in full its preemptive right within such 15-day
period, the Company shall, upon the expiration of such 15-day period, give
each Minority Stockholder having exercised such right (an "Exercising
Stockholder") written notice containing the quantity of New Securities with
respect to which any Minority Stockholder's preemptive rights were not
exercised (the "Remaining New Securities"). Each Exercising Stockholder shall
have 10 days from the date any such notice is given to elect to purchase all
or any part of the Remaining New Securities for the price and upon the
general terms specified in the Original Notice by giving written notice to
the Company and stating therein the quantity of Remaining New Securities to
be purchased. If the Exercising Stockholders have elected to purchase a
number of Remaining New Securities that in the aggregate exceeds the total
number of Remaining New Securities, the Remaining New Securities shall be
allocated among the Exercising Stockholders on a basis consistent with the
procedures set forth in Section 3.4.3 of this Agreement.
4.4 Failure to Exercise Preemptive Rights. In the event that
any Minority or Exercising Stockholder fails to exercise in full its
preemptive right within the aforementioned time periods, the Company shall
have 180 days thereafter to sell the New Securities with respect to which any
such Minority or Exercising Stockholder's preemptive rights were not
exercised, at a price and upon general terms no more favorable to the
purchasers thereof than specified in the Original Notice. In the event the
Company has not sold the New Securities within such 180-day
22
period, the Company shall not thereafter issue or sell any New Securities
without first offering such securities to the Minority Stockholders in the
manner provided above.
Section 5. Representations and Warranties. Each of the parties
hereto severally as to itself or himself, and not jointly, hereby represents
and warrants to each of the other parties to this Agreement that:
(i) such party has the full right, power and authority to
execute, deliver and perform this Agreement (and any other agreements or
instruments to be executed by such party in connection herewith);
(ii) this Agreement has been duly executed and delivered by or
on behalf of such party and constitutes (and each other agreement or
instrument to be executed by such party in connection herewith will, upon
such execution, have been duly executed and delivered by or on behalf
of such party and will constitute) a legal, valid and binding obligation
of such party, enforceable against such party in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting the rights of creditors generally or by the
application of general equity principles;
(iii) no consent, approval, authorization or order of any Person
is required for the execution, delivery or performance of this Agreement
(or any such other agreement or instrument) by such party;
23
(iv) neither the execution, delivery nor performance of this
Agreement (or any such other agreement or instrument) by such party will (A)
conflict with, or result in a breach of, or constitute a default under, or
result in a violation of, any agreement or instrument to which such party is
a party or by which such party or its or his property is bound, or (B) result
in the violation of any applicable law or order, judgment, writ, injunction,
decree or award of any Governmental Authority; and
(v) the Common Stock held by such party is being held for its
own account for investment and without a view to the public distribution of
such Common Stock or any interest therein.
Each of the parties hereto agrees that the representations
and warranties set forth in this Section 5 shall survive the execution and
delivery of this Agreement.
Section 6. Termination.
6.1 Entire Agreement. If at any time the Minority Stockholders do
not own any of the outstanding shares of Common Stock, this Agreement will
terminate, without any other action by the parties or otherwise.
6.2 Right to Designate Directors. If at any time the Common Stock
is registered under the Securities Exchange Act of 1934, as amended, Section
2 of this Agreement will terminate immediately after the first election of
directors following the effective date of such registration, without any
other action by the parties or otherwise. If at any time MTI (or its
24
Permitted Transferees or Permitted Transferees of Permitted Transferees) or
the Individual Refraco Stockholders collectively (or their Permitted
Transferees or Permitted Transferees of Permitted Transferees) own less than
2.5% of the Common Stock, Section 2 of this Agreement will terminate with
respect to such Minority Stockholder(s), without any other action by the
parties or otherwise.
Section 7. Confidentiality. Each Stockholder agrees that, unless
the Company otherwise consents, such Stockholder will maintain the
confidentiality of any confidential information relating to, and provided to
it by, Alpine, the Company or any of its subsidiaries; provided, however,
that any Stockholder may disclose any such information (i) to such
Stockholder's Affiliates, and to such Stockholder's and such Affiliates'
officers, directors, employees, partners, agents, accountants, counsel and
other professional advisors, (ii) that is or has become generally available
to the public, (iii) as may be required or appropriate in any filing, report,
statement or testimony submitted to any Governmental Authority, (iv) as may
be required or appropriate in response to any summons or subpoena or in
connection with any litigation, (v) to comply with any law, order, regulation
or ruling applicable to such Stockholder, (vi) to the extent necessary to
enforce the provisions of this Agreement, and (vii) to any prospective
transferee in connection with any contemplated transfer of any of the shares
of Common Stock (or any interest therein) by such Stockholder, provided that
such prospective transferee agrees to be bound by this Section 7 to the same
extent as such Stockholder.
25
Section 8. Miscellaneous.
8.1 Specific Performance. Since a breach of the provisions of
this Agreement could not adequately be compensated by money damages, any
party shall be entitled, in addition to any other right or remedy available
to it, to an injunction restraining such breach or a threatened breach and to
specific performance of any such provision of this Agreement, and in either
case no bond or other security shall be required in connection therewith, and
the parties hereby consent to the issuance of such injunction and to the
ordering of specific performance. Notwithstanding the foregoing, the parties
agree that the Minority Stockholders shall not be entitled to, and shall not
seek, an injunction or other temporary relief restraining the breach, alleged
breach or threatened breach of the covenant of Alpine set forth in Section
3.3.2 in the event that such breach, alleged breach or threatened breach
arises out of or relates to a transaction that Alpine has notified the
Minority Stockholders is intended to qualify as a reorganization that is
described in clause (z) of Section 3.3.2, and the Minority Stockholders shall
not be entitled to, and shall not seek, the ordering of specific performance
with respect to any such matter; provided, however, that nothing herein shall
limit, or be deemed to waive, the rights of the Minority Stockholders to seek
monetary relief against Alpine or any other Person.
8.2 Further Assurances. Each party hereto 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 any other party hereto reasonably may request in order to carry
out the intent and accomplish the purposes of this Agreement.
26
8.3 Governing Law. This Agreement and the rights and obligations
of the parties hereunder shall be governed by, and construed and interpreted
in accordance with, the laws of the State of Delaware without giving effect
to the choice of law principles thereof.
8.4 Entire Agreement; Amendment; Waiver. This Agreement: (a)
contains the entire agreement among the parties hereto with respect to the
subject matter hereof, (b) supersedes all prior written agreements and
negotiations and oral understandings, if any, with respect thereto, and (c)
may not be amended or supplemented except by an instrument or counterparts
thereof in writing signed by the parties hereto. No waiver of any term or
provision of this Agreement shall be effective unless in writing signed by
the party to be charged. The waiver by any party of a breach of any term or
provision of this Agreement shall not be construed as a waiver of any
subsequent breach.
8.5 Binding Effect. This Agreement shall be binding on and inure
to the benefit of the parties hereto and their respective Permitted
Transferees, legal representatives, successors and Third Party Transferees;
provided, however, that none of the rights of any Stockholder or group of
Stockholders to designate director(s) under the provisions of Section 2
hereof shall be transferable to a Third Party Transferee. Any transfer not in
compliance with the provisions of this Agreement shall be null and void and
of no effect.
8.6 Invalidity of Provision. The invalidity or unenforceability of
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of
27
the remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any other
jurisdiction.
8.7 Notice. All notices and other communications provided for
herein shall be dated and in writing and shall be deemed to have been duly
given (x) on the date of delivery, if delivered personally or by telecopier,
receipt confirmed, (y) on the second following business day, if delivered by
a recognized overnight courier service, or (z) seven days after mailing, if
sent by registered or certified mail, return receipt requested, postage
prepaid, in each case, to the party to whom it is directed at the address set
forth below (or at such other address as any party hereto shall hereafter
specify by notice in writing to the other parties hereto):
If to the Company or Alpine:
c/o The Alpine Group, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
If to MTI:
c/o CE Minerals Inc.
000 Xxxx 0xx Xxxxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. XxXxxxxx
Fax: (000) 000-0000
28
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to the Individual Refraco Stockholders:
Xxxxx Xxxxxxxxx
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Xxxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
Xxxx Xxxxxx
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
Xxxxxxx X. Xxxxx
American Premier, Inc.
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
with copies to:
Duane, Morris & Heckscher LLP
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
and
Xxxxxxx Xxxxxx, Esq.
29
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
8.8 Headings; Execution in Counterparts. The headings and
captions contained herein are for convenience of reference only and shall not
control or affect the meaning or construction of any provision hereof. This
Agreement may be executed in any number of counterparts, each of which shall
be deemed to be an original and all of which together shall constitute one
and the same instrument.
30
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
REFRACO INC.
By: /s/ Bragi X. Xxxxx
--------------------------------------
Name: Bragi X. Xxxxx
Title: Executive Vice President
THE ALPINE GROUP, INC.
By: /s/ Bragi X. Xxxxx
--------------------------------------
Name: Bragi X. Xxxxx
Title: Executive Vice President
MINERALS TRADING, INC.
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
/s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
/s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
/s/ Xxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
31
