Form SC 13D FAIRMOUNT SANTROL HOLDIN Filed by: Unimin Corp
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
FAIRMOUNT SANTROL HOLDINGS INC.
(Name of Issuer)
Common Stock, $0.01 par value
(Title of Class of Securities)
30555Q108
(CUSIP Number)
Laurence Boens
Plantin en Moretuslei 1A, B-2018 Antwerp, Belgium
With a copy to:
Peter D. Lyons, Esq.
Michael Levitt, Esq.
Freshfields Bruckhaus Deringer US LLP
601 Lexington Avenue
New York, NY 10022-4664
(212) 277-4000
(Name,
Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
December 11, 2017
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
SCHEDULE 13D
CUSIP No. 30555Q108 | Page 2 of 14 |
1 |
NAME OF REPORTING PERSON Unimin Corporation | |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) x (b) ¨ | |
3 | SEC USE ONLY | |
4 | SOURCE OF FUNDS (See Instructions) WC, PF | |
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) | ¨ |
6 | CITIZENSHIP OR PLACE OF ORGANIZATION Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER 0 |
8 |
SHARED VOTING POWER 58,415,452.666 | |
9 |
SOLE DISPOSITIVE POWER 0 | |
10 |
SHARED DISPOSITIVE POWER 58,415,452.666 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 58,415,452.666* | |
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | ¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 26.1%** | |
14 |
TYPE OF REPORTING PERSON (See Instructions) CO |
* Beneficial ownership of 58,415,452.666 shares of common stock, par value $0.01 (the “Issuer Common Stock”), of Fairmount Santrol Holdings Inc., a Delaware corporation (the “Issuer”), is being reported hereunder solely because SCR-Sibelco NV, a company organized under the laws of Belgium (“Sibelco”), and Unimin Corporation, a Delaware corporation and wholly owned subsidiary of Sibelco (“Unimin” and, together with Sibelco, collectively, the “Reporting Persons”), may be deemed to have beneficial ownership of such shares of Issuer Common Stock as a result of certain provisions contained in the Voting and Support Agreement, dated as of December 11, 2017, a copy of which is attached as Exhibit 2 hereto (the “Voting Agreement”), entered into by Unimin, Bison Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Unimin (the “Merger Sub 1”), and certain stockholders of the Issuer. Pursuant to Rule 13d-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by either of the Reporting Persons that it is the beneficial owner of any shares of Issuer Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is hereby expressly disclaimed.
** The calculation of the 26.1% beneficial ownership is based on (i) 58,415,452.666 shares of Issuer Common Stock beneficially owned by the Voting Agreement Shareholders (as defined below) that are parties to the Voting Agreement and (ii) 224,092,378 shares of Issuer Common Stock issued and outstanding as of December 8, 2017, as set forth in the Merger Agreement (as defined below) referred to in this Schedule 13D.
SCHEDULE 13D
CUSIP No. 30555Q108 | Page 3 of 14 |
1 |
NAME OF REPORTING PERSON SCR-Sibelco NV | |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) x (b) ¨ | |
3 | SEC USE ONLY | |
4 | SOURCE OF FUNDS (See Instructions) WC, PF | |
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) | ¨ |
6 | CITIZENSHIP OR PLACE OF ORGANIZATION Belgium |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER 0 |
8 |
SHARED VOTING POWER 58,415,452.666 | |
9 |
SOLE DISPOSITIVE POWER 0 | |
10 |
SHARED DISPOSITIVE POWER 58,415,452.666 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 58,415,452.666* | |
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | ¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 26.1%** | |
14 |
TYPE OF REPORTING PERSON (See Instructions) HC-CO |
* Beneficial ownership of 58,415,452.666 shares of Issuer Common Stock is being reported hereunder solely because the Reporting Persons may be deemed to have beneficial ownership of such shares of Issuer Common Stock as a result of certain provisions contained in the Voting Agreement. Pursuant to Rule 13d-4 under the Exchange Act, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by either of the Reporting Persons that it is the beneficial owner of any shares of Issuer Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is hereby expressly disclaimed.
** The calculation of the 26.1% beneficial ownership is based on (i) 58,415,452.666 shares of Issuer Common Stock beneficially owned by the Voting Agreement Shareholders (as defined below) that are parties to the Voting Agreement and (ii) 224,092,378 shares of Issuer Common Stock issued and outstanding as of December 8, 2017, as set forth in the Merger Agreement (as defined below) referred to in this Schedule 13D.
SCHEDULE 13D
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ITEM 1. | SECURITY AND ISSUER |
The class of equity securities to which this Schedule relates is the common stock, par value $0.01 per share, of Fairmount Santrol Holdings Inc., a Delaware corporation. The principal executive office of the Issuer is located at 8834 Mayfield Road, Chesterland, Ohio 44026, United States of America.
ITEM 2. | IDENTITY AND BACKGROUND |
This Schedule is being filed by SCR-Sibelco NV, a company organized under the laws of Belgium (“Sibelco”) and Unimin Corporation, a Delaware corporation and wholly owned subsidiary of Sibelco (“Unimin” and, together with Sibelco, collectively, the “Reporting Persons”).
The address of the principal office of Unimin is 258 Elm St., New Canaan, Connecticut 06840, United States of America. The address of the principal office of Sibelco is Plantin en Moretuslei 1A, B-2018 Antwerp, Belgium.
Unimin is an application-focused minerals company providing materials solutions to its customers drawing from a diversified product portfolio and the worldwide production capabilities of Sibelco, its privately held parent company. Unimin is one the largest producers of quartz proppants for oil and natural gas stimulation and recovery and is a leading supplier of multi-mineral product offerings to industrial customers in glass, construction, ceramics, coatings, polymers and foundry markets.
Sibelco is a Belgian privately-owned business which manufactures and distributes an extensive multi-mineral portfolio consisting of silica, clay, lime and other industrial, non-metallic (specialty) minerals. Sibelco is a global leader in material solutions, transforming raw materials with technology and know-how to offer solutions with and beyond minerals.
The name, business address, present principal occupation or employment and citizenship of each director and executive officer of Unimin and Sibelco are set forth on Schedule I hereto and are incorporated by reference herein in their entirety.
During the past five years, none of the Reporting Persons has been and, to the best of their knowledge, no person listed on Schedule I hereto has been, convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
During the past five years, none of the Reporting Persons has been and, to the best of their knowledge, no person listed on Schedule I hereto has been, a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was, or is, subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding any violation with respect to such laws.
The Reporting Persons have entered into a Joint Filing Agreement, dated December 21, 2017, a copy of which is attached as Exhibit 3 hereto.
ITEM 3. | SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION |
As an inducement for Unimin and Bison Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Unimin ( “Merger Sub 1”), to enter into the Merger Agreement (as defined in Item 4 herein) and in consideration thereof, certain stockholders of the Issuer entered into the Voting and Support Agreement, dated as of December 11, 2017, a copy of which is attached as Exhibit 2 hereto (the “Voting Agreement”), with Unimin and Merger Sub 1. Other than entering into the Merger Agreement, neither Unimin nor Sibelco has paid any consideration to the Issuer or to any stockholder of the Issuer as an inducement to entering into the Voting Agreement.
SCHEDULE 13D
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For a summary of certain provisions of the Merger Agreement and Ancillary Agreements (as defined below), see Item 4 below, which summary is incorporated by reference in its entirety in the response to this Item 3. For a summary of the Voting Agreement, see Item 4 below, which summary is incorporated by reference in its entirety in the response to this Item 3. The Merger Agreement is filed as Exhibit 1 hereto and is incorporated herein by reference in its entirety. The Voting Agreement is filed as Exhibit 2 hereto and is incorporated herein by reference in its entirety.
ITEM 4. | PURPOSE OF TRANSACTION |
As described more fully in Item 3 and below, this Schedule relates to the proposed business combination of the Issuer and Unimin pursuant to the terms of an Agreement and Plan of Merger (the “Merger Agreement”), dated as of December 11, 2017, by and among the Issuer, Sibelco, Unimin, Merger Sub 1 and Bison Merger Sub I, LLC, a Delaware limited liability company and a wholly owned subsidiary of Unimin (“Merger Sub 2” and, together with Merger Sub 1, the “Merger Subs”).
Concurrently with the execution of the Merger Agreement, Charles D. Fowler and ASP FML Holdings, LLC (collectively, the “Voting Agreement Shareholders”), who collectively own 58,415,452.666 shares of Issuer Common Stock, entered into the Voting Agreement with Unimin and Merger Sub 1.
Merger Agreement
Pursuant to the terms of the Merger Agreement and subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, the Issuer and Sibelco have agreed to effect a strategic combination of their respective businesses by: (i) merging Merger Sub 1 with and into the Issuer (the “First Merger”), with the Issuer continuing as the surviving corporation (the “Surviving Corporation”), and (ii) upon the effective time of the First Merger, merging the Surviving Corporation with and into Merger Sub 2 (the “Second Merger” and, together with the First Merger, the “Mergers”), with Merger Sub 2 continuing as the surviving company as a wholly owned subsidiary of Unimin (also referred to herein as the “combined company”), which will become the parent holding company for the combined group.
The board of directors of each of the Issuer and Unimin has approved the Merger Agreement, the Mergers and the other transactions contemplated thereby.
Merger Consideration
Pursuant to the terms of the Merger Agreement, at the effective time of the First Merger (the “Effective Time”), each share of Issuer Common Stock (other than treasury stock and any shares of Issuer Common Stock owned by the Issuer or any wholly owned subsidiary of the Issuer), will be converted into the right to receive (i) the number of shares of Unimin common stock, which is expected to have par value of $0.01 per share at Closing (the “Unimin Common Stock”), that will result in the holders of Issuer Common Stock, together with the holders of certain Issuer equity awards, owning 35% of the Unimin Common Stock (the “Exchange Ratio”) and (ii) an amount in cash equal to the result of (x) $170,000,000, divided by (y) the Fully Diluted Fairmount Share Number (as defined in the Merger Agreement), without interest. The Merger Agreement provides that, at the Effective Time, the Issuer’s stock options and other equity awards will automatically convert into stock options and equity awards with respect to Unimin Common Stock, on the same terms and conditions under the applicable plans and award agreements immediately prior to the Effective Time after giving effect to the Exchange Ratio and appropriate adjustments to reflect the consummation of the Mergers.
Registration and Listing of Unimin Common Stock
Sibelco and Unimin will prepare and will cause Unimin to file with the U.S. Securities and Exchange Commission a registration statement on Form S-4 in connection with the issuance of shares of Unimin Common Stock in the Mergers, which will include a prospectus relating to issuance of Unimin Common Stock to be issued in the First Merger. The Unimin Common Stock will be listed on the New York Stock Exchange as of and after the Effective Time.
SCHEDULE 13D
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Governance
Under the terms of the Merger Agreement, as of the Effective Time, Unimin will cause its certificate of incorporation and bylaws to be amended on the terms set forth in the Merger Agreement.
Under the terms of the Merger Agreement, as of the Effective Time, Jenniffer Deckard, who is currently the Chief Executive Officer of the Issuer, will serve as the Chief Executive Officer of the combined company. Under the terms of the Merger Agreement and the Stockholders Agreement, the combined company will have a board of directors consisting initially of 11 directors, (i) six of whom will be persons designated by Sibelco, one of whom will be the Chairman of the board of directors of the combined company, (ii) four of whom will be persons designated by the Issuer from the directors of the Issuer serving as of the date of the Merger Agreement, and (iii) Jenniffer Deckard in her capacity as the Chief Executive Officer of the combined company as of the Effective Time.
Conditions to the Mergers
The consummation of the Merger is subject to customary closing conditions, including (i) the approval of the Merger by holders of a majority in voting power of the outstanding shares of Issuer Common Stock, (ii) the absence of any law, injunction or certain other legal impediments to the consummation of the Mergers, (iii) the receipt of specified required regulatory approvals in agreed jurisdictions, including the early termination or expiration of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (iv) subject to certain materiality and other qualifications, the accuracy of representations and warranties made by the Issuer and each of Sibelco, Unimin and the Merger Subs, (v) the performance in all material respects by the Issuer, Unimin, Sibelco and the Merger Subs, respectively, of its obligations under the Merger Agreement, (vi) the registration statement on Form S-4 used to register the Unimin Common Stock to be issued in the First Merger being declared effective by the SEC, (vii) the approval for listing on the New York Stock Exchange of the Unimin Common Stock to be issued in the First Merger, (viii) the HPQ Carve-out and (ix) the receipt of a tax opinion from tax counsel as to the tax-free nature of each of the Mergers.
Certain other Terms of the Merger Agreement
The Merger Agreement contains customary representations and warranties made by each of the Issuer, Sibelco, Unimin and the Merger Subs. The parties have also agreed to various covenants in the Merger Agreement, including, among others, covenants (i) to conduct their respective businesses in the ordinary course consistent with past practice during the interim period between the execution of the Merger Agreement and the Effective Time, (ii) to cooperate to prepare and file (a) the Issuer’s proxy statement in connection with obtaining the approval of the Issuer’s stockholders for the Mergers and (b) Unimin’s registration statement in connection with the registration of the Unimin Common Stock to be issued in the First Merger, (iii) restricting, subject to certain limitations, the Issuer’s ability to solicit or enter into certain alternative transactions, (iv) to cause a meeting of the Issuer’s stockholders to be held to consider adoption of the Merger Agreement, and (v) to use their reasonable best efforts to consummate and obtain the proceeds of the financing transactions contemplated by the Debt Commitment Letter (as defined in the Merger Agreement), or to obtain alternative financing for the Mergers.
The Merger Agreement contains certain termination rights for each of the Issuer and Unimin, including in the event that: (i) the Merger is not completed on or prior to December 11, 2018, subject to extension for an additional six-month period for the purpose of obtaining regulatory clearances, (ii) a governmental entity of competent jurisdiction has issued an order or taken any other action permanently restraining, enjoining or otherwise prohibiting the Merger and such order or other action shall have become final and non-appealable (subject to certain limitations set forth in the Merger Agreement), (iii) the Merger Agreement is not approved by the stockholders of the Issuer at its stockholders meeting, (iv) if any required consent is conditioned on any of the Issuer, Unimin, or any of their respective subsidiaries or affiliates making a Material Divestiture (as defined in the Merger Agreement), (v) the Issuer’s board of directors changes its recommendation to the Issuer’s stockholders regarding the approval of the Merger Agreement, (vi) Unimin fails to consummate the Mergers at the Closing because the financing for the Mergers is unavailable, or (vii) at any time prior to obtaining approval of the Issuer’s stockholders, the Issuer receives a Company Superior Proposal (as defined in the Merger Agreement) and elects to terminate the Merger Agreement and enter into a definitive agreement in respect of that Company Superior Proposal.
SCHEDULE 13D
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Termination Fees
The Merger Agreement provides that, upon termination of the Merger Agreement under specified circumstances, including (i) a change in the recommendation of the board of directors of the Issuer, (ii) a termination of the Merger Agreement by the Issuer prior to obtaining approval of the Issuer’s stockholders in order to enter into a definitive agreement for a Company Superior Proposal (as defined in the Merger Agreement), or (iii) termination in connection with a material breach by the Issuer or because the Mergers are not consummated by the Outside Date (as defined in the Merger Agreement) at a time when there was an offer or proposal for an alternative transaction with respect to the Issuer and the Issuer enters into a definitive agreement or consummates a Company Qualifying Transaction (as defined in the Merger Agreement) within nine months following such date of termination, the Issuer will pay Unimin a termination fee equal to $52,000,000.
Further, the Merger Agreement provides that Unimin must pay a termination fee of $52,000,000 to the Issuer if the Merger Agreement is terminated because Unimin fails to consummate the Mergers at the Closing because the financing for the Mergers is unavailable.
Voting Agreement
On December 11, 2017, Unimin, Merger Sub 1, Charles D. Fowler and ASP FML Holdings, LLC entered into the Voting Agreement. Subject to the terms and conditions contained therein, the Voting Agreement requires ASP FML Holdings, LLC, which entity beneficially owns 48,156,628 shares of Issuer Common Stock (representing approximately 21.5% of the currently outstanding Issuer Common Stock), and Charles D. Fowler, who beneficially owns 10,258,824.666 shares of Issuer Common Stock (representing approximately 4.6% of the currently outstanding Issuer Common Stock), to vote their respective beneficially owned shares of Issuer Common Stock in favor of the adoption of the Merger Agreement and the transactions contemplated thereunder, unless the board of directors of the Issuer has changed its recommendation with respect thereto.
Further, the Voting Agreement Shareholders granted an irrevocable proxy to and appointed Unimin and any designee of Unimin as their attorneys-in-fact to vote their shares of Issuer Common Stock in accordance with the Voting Agreement. The Voting Agreement restricts the ability of the Voting Agreement Shareholders to transfer their shares of Issuer Common Stock. If during the term of the Voting Agreement, any Voting Agreement Shareholder becomes the record or beneficial owner of any Additional Securities (as defined in the Voting Agreement), such Additional Securities will be subject to the Voting Agreement.
The Voting Agreement will automatically terminate upon the earliest to occur of: (a) the termination of the Merger Agreement in accordance with its terms, (b) the Effective Time (as defined in the Merger Agreement), and (c) the board of directors of the Issuer making a Company Recommendation Change (as defined in the Merger Agreement). In addition, the Voting Agreement may be terminated, (A) with respect to an individual Voting Agreement Shareholder, (i) at any time by written consent of Unimin and such Voting Agreement Shareholder and (ii) by the Voting Agreement Shareholder following any amendment, change or modification to the Merger Agreement affecting the Merger Consideration in a manner detrimental to the Voting Agreement Shareholder or Article VII of the Merger Agreement or that would other otherwise have a material adverse effect on the Voting Agreement Shareholder, or (B) with respect to all Voting Agreement Shareholders, at any time by written consent of the parties to the Voting Agreement.
SCHEDULE 13D
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Stockholders Agreement
Concurrent with the closing of the Mergers contemplated by the Merger Agreement, Unimin, Sibelco and certain other stockholders of Unimin will enter into a Stockholders Agreement (the “Stockholders Agreement”).
Under the terms of the Stockholders Agreement, through the third annual stockholders meeting after the Effective Date, each party to the Stockholders Agreement agrees to vote all voting shares held by such party to ensure that the board of directors of Unimin consists of eleven directors. Prior to the earlier of (i) the close of business on the tenth business day following the date on which Sibelco and its affiliates no longer beneficially own more than 50% of the outstanding Unimin Common Stock and (ii) the close of business on the business day following a public announcement by Sibelco that the trigger date has occurred (the earlier of (i) and (ii), the “Trigger Date”), each party to the Stockholders Agreement will vote and take any necessary action so that (i) six directors will be the persons nominated by Sibelco and appointed to the board of directors under the terms of the Merger Agreement (the “Sibelco Directors”), one of whom will be the Chairman of the board of directors of Unimin, (ii) four directors will be persons nominated by the Issuer and appointed to the board of directors under the terms of the Merger Agreement (the “Fairmount Directors”), and (iii) the eleventh director will be the Chief Executive Officer of Unimin as of the Effective Time. From and after the Trigger Date, each party to the Stockholders Agreement will vote and take any necessary action so that (i) the number of Sibelco Directors will be reduced (by director removal or resignation) so that the proportion of Sibelco Directors on the board of directors is equal to Sibelco’s ownership percentage of the Unimin Common Stock, (ii) the Fairmount Directors remain directors and any vacancy created by the reduction in the number of Sibelco Directors will be filled pursuant to the Stockholders Agreement, and (iii) the eleventh director will be the Chief Executive Officer of Unimin as of the Effective Time.
Through the third annual stockholders meeting after the Effective Date, vacancies on the board of the directors of Unimin created by (i) the death, disability, retirement, resignation or removal of a Sibelco Director will be filled by the remaining Sibelco Directors then in office, (ii) the death, disability, retirement, resignation or removal of a Fairmount Director will be filled by the remaining Fairmount Directors then in office, and (iii) the removal or resignation of the Chief Executive Officer will be filled by the successor Chief Executive Officer.
The Stockholders Agreement provides that three of the Fairmount Directors must be independent (the “Fairmount independent directors”) and during the three year period following the Effective Time (the “Restricted Period”) certain actions, including the issuance of additional classes of capital stock to Sibelco or its affiliates, entry into certain agreements with Sibelco, pursuing claims against Sibelco or any Sibelco-related party and amending the Articles of Incorporation and Bylaws of Unimin must be approved by the Fairmount independent directors.
For 45 days following the Effective Time, Sibelco and any director who is also a party to the Stockholders Agreement will be prohibited from selling any shares of Unimin Common Stock. The Stockholders Agreement further provides that during the Restricted Period, Sibelco will be bound by customary lockup and standstill provisions, including covenants not to solicit competing proxies or call special meetings of Unimin’s stockholders, subject to the earlier expiration of the standstill provisions or certain waivers thereto upon the occurrence of certain events, Sibelco may not transfer any shares of Unimin Common Stock that it owns, subject to certain exceptions, and unless approved by the Fairmount independent directors, Sibelco will be subject to standstill restrictions. Under the terms of the Stockholders Agreement, Sibelco will have a pre-emptive right on the issuance of new securities by Unimin, subject to customary exceptions, and unless approved by a majority of all independent directors Sibelco will not acquire more than 70% of the outstanding Unimin Common Stock during the Restricted Period, or 80.1% of the outstanding Unimin Common Stock thereafter.
SCHEDULE 13D
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HPQ Carve-Out
Prior to the consummation of the Mergers, Unimin will divest its high purity quartz business to Sibelco by means of a distribution in exchange for a redemption of capital stock of Unimin held by Sibelco (the “HPQ Carve-out”). The HPQ Carve-out is governed by a Business Contribution Agreement and a Tax Matters Agreement to be entered into between Unimin, Sibelco and a newly established affiliate entity. Among other things, such agreements provide for customary allocation of assets and liabilities relating to Unimin’s high purity quartz business, and mutual indemnities provided by the relevant parties in respect of such liabilities.
Other Agreements
In connection with the execution of the Merger Agreement, Unimin has secured fully committed financing from Barclays Bank PLC and BNP Paribas to refinance Unimin’s and the Issuer’s outstanding debt obligations and certain transaction expenses.
In connection with certain transactions contemplated by the Merger Agreement, additional agreements will be entered into between Unimin and Sibelco at or prior to Closing, including a Distribution Agreement, Agency Agreement and Non-Compete Agreement. Pursuant to the Distribution Agreement, the parties will each provide distribution services with respect to certain of the other party’s products and license certain trademarks. Pursuant to the Agency Agreement, the parties will each provide exclusive agency services with respect to the other party’s products within defined trading areas. Pursuant to the Non-Compete Agreement, for so long as Sibelco or any of its affiliates owns more than 50% of the issued and outstanding shares of Unimin Common Stock, the parties agree to refrain from selling, marketing, distributing or producing certain products within defined markets and territories. The Distribution Agreement, Agency Agreement and Non-Compete Agreement, and all obligations, terms and conditions contained therein, will automatically terminate without any further action required by any party upon Sibelco directly or indirectly, ceasing to own more than 50% of the issued and outstanding shares of Unimin Common Stock.
In addition, at Closing, Unimin, Sibelco and Sibelco Switzerland GmbH will enter into a Registration Rights Agreement (the “Registration Rights Agreement”). Pursuant to the terms of the Registration Rights Agreement, Sibelco and its affiliates are entitled to customary demand and piggyback registration rights.
The foregoing description of the (i) Merger Agreement, (ii) (a) the form of the Stockholders Agreement, (b) the form of the Business Contribution Agreement, (c) the form of the Tax Matters Agreement, (d) the form of the Distribution Agreement, (e) the form of the Agency Agreement, (f) the form of the Non-Compete Agreement, and (g) the form of the Registration Rights Agreement (collectively, the “Ancillary Agreements”) and (iii) the transactions contemplated thereby does not purport to be and is not complete and is subject to and qualified in its entirety by reference to the full text of the Merger Agreement and the Ancillary Agreements, copies of which are attached hereto as Exhibit 1 and the terms of which are incorporated herein by reference.
The foregoing description of the Voting Agreement and the transactions contemplated thereby does not purport to be and is not complete and is subject to and qualified in its entirety by reference to the full text of the Voting Agreement, a copy of which are attached hereto as Exhibit 2 and the terms of which are incorporated herein by reference.
Other than as set forth in this Item 4, the Reporting Persons have no present plans or intentions which would result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D of the Exchange Act.
SCHEDULE 13D
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ITEM 5. | INTEREST IN SECURITIES OF THE ISSUER |
(a)-(b) Prior to December 11, 2017, neither of the Reporting Persons was a beneficial owner, for purposes of Rule 13d-3 under the Exchange Act, of any shares of Issuer Common Stock or any other securities exchangeable or convertible into such shares. However, under the definition of “beneficial ownership” as set forth in Rule 13d-3 under the Exchange Act, as a result of entering into the Voting Agreement, the Reporting Persons may be deemed to beneficially own 58,415,452.666 shares of Issuer Common Stock (with shared voting power and shared dispositive power) representing approximately 26.1% of the total outstanding shares of Issuer Common Stock, based on 224,092,378 shares of Issuer Common Stock reported outstanding as of December 8, 2017 (as set forth in the Merger Agreement). Information regarding the Voting Agreement Stockholders’ beneficial ownership is based upon information disclosed in the Voting Agreement. The Reporting Persons disclaim any beneficial ownership of such shares of Issuer Common Stock, and nothing herein shall be deemed to be an admission by either of the Reporting Persons as to the beneficial ownership of such shares. To the Reporting Parsons’ knowledge, no shares of Issuer Common Stock are beneficially owned by any of the persons identified in Schedule I hereto.
Notwithstanding the foregoing, however, the Reporting Persons (i) are not entitled to any rights as a stockholder of the Issuer with respect to any shares of Issuer Common Stock and (ii) have no power to vote, direct the voting of, dispose of, or direct the disposal of, any shares of Issuer Common Stock other than the power provided pursuant to the Voting Agreement. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission that either of the Reporting Persons is the beneficial owner of any securities of the Issuer (including, without limitation, the shares of Issuer Common Stock owned by the shareholder) for purposes of Section 13(d) or 16 of the Exchange Act or for any other purpose and such beneficial ownership is hereby expressly disclaimed.
(c)-(d) Except as described herein, none of the Reporting Persons nor, to the best of their knowledge, any other person referred to in Schedule I hereto, has acquired or disposed of any shares of Issuer Common Stock during the past 60 days. Furthermore, the Reporting Persons know of no other person having the right to receive the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities covered by this Schedule.
(e) Not applicable.
ITEM 6. | CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER |
The information set forth in Items 2, 3 and 4 is incorporated herein by reference in its entirety.
ITEM 7. | MATERIALS TO BE FILED AS EXHIBITS |
Descriptions of documents set forth on this Schedule are qualified in their entirety by reference to the exhibits listed in this Item 7.
Exhibit 1 | Agreement and Plan of Merger, dated as of December 11, 2017, by and among Fairmount Santrol Holdings Inc., SCR-Sibelco NV, Unimin Corporation, Bison Merger Sub, Inc. and Bison Merger Sub I, LLC, a copy of which is incorporated herein by reference from Exhibit 2.1 to the current report on Form 8-K filed by the Issuer on December 12, 2017. |
Exhibit 2 | Voting and Support Agreement, dated as of December 11, 2017, by and among Unimin Corporation, Bison Merger Sub, Inc. and the stockholders of Fairmount Santrol Holdings Inc. named therein. |
Exhibit 3 | Joint Filing Agreement, dated as of December 21, 2017, by and among the Reporting Persons. |
SCHEDULE 13D
CUSIP No. 30555Q108 | Page 11 of 14 |
SIGNATURE
After reasonable inquiry and to the best of each of the undersigned’s knowledge and belief, each of the undersigned certify that the information set forth in this statement is true, complete and correct.
Date: December 21, 2017
SCR-Sibelco NV | ||
By: | /s/ Kurt Decat | |
Name: Kurt Decat | ||
Title: Chief Financial Officer, Member of Executive Committee | ||
By: | /s/ Jean-Luc Deleersnyder | |
Name: Jean-Luc Deleersnyder | ||
Title: Chief Executive Officer, Member of Executive Committee | ||
Unimin Corporation | ||
By: | /s/ Campbell J. Jones | |
Name: Campbell J. Jones | ||
Title: President and Chief Executive Officer |
SCHEDULE 13D
CUSIP No. 30555Q108 | Page 12 of 14 |
SCHEDULE I
ADDITIONAL INFORMATION CONCERNING THE REPORTING PERSONS
Unimin Corporation
Name of Directors and Executive Officers | Principal Address | Principal Occupation(1) | Citizenship | |||
Campbell J. Jones | 258 Elm St., New Canaan, Connecticut 06840, United States | President and Chief Executive Officer, Director | Australia | |||
Andrew D. Eich | 258 Elm St., New Canaan, Connecticut 06840, United States | Senior Vice President and Chief Commercial Officer, Director | United States | |||
Mark B. Oskam | 258 Elm St., New Canaan, Connecticut 06840, United States | Senior Vice President/Corporate Development | United States | |||
Richard M. Solazzo | 258 Elm St., New Canaan, Connecticut 06840, United States | Senior Vice President/Law, General Counsel & Secretary | United States | |||
Meghan E. DeMasi | 258 Elm St., New Canaan, Connecticut 06840, United States | Vice President/Finance and Treasurer | United States | |||
Jennifer L. Fox | 258 Elm St., New Canaan, Connecticut 06840, United States | Vice President/Human Resources | United States | |||
Andrew G. Bradley | 258 Elm St., New Canaan, Connecticut 06840, United States | Vice President/Safety, Health and Sustainability | United States | |||
Douglas S. Losee | 121 St. Andrews Ct., Mankato, Minnesota 56001, United States | Vice President/Environmental Affairs | United States | |||
Joaquin Duran Martinez | Loma Larga No. 2621 Col., Obispado Monterrey, Nuevo Leon 64060, Mexico | Vice President/Mexico | Mexico | |||
Reynaldo V. Aloy, Jr. | 258 Elm St., New Canaan, Connecticut 06840, United States | Vice President/Financial Planning & Analysis | Brazil | |||
Jean-Luc Deleersnyder (2) | Plantin en Moretuslei 1A, B-2018 Antwerp, Belgium | Director | Belgium |
______________________
(1) | Unless otherwise indicated, the principal occupation of each person is employment by/service at Unimin. |
(2) | The principal occupation of Jean-Luc Deleersnyder is his position as Chief Executive Officer of Sibelco. |
SCHEDULE 13D
CUSIP No. 30555Q108 | Page 13 of 14 |
SCR-Sibelco NV
Name of Directors and Executive Officers |
|
Principal Address | Position at Sibelco | Principal Occupation(1) | Citizenship / State of Incorporation | |||
Bert De Graeve, permanent representative of IDW Consult BVBA (2) |
Langenberg 41, 2323 Wortel Belgium
|
Chairman of the Board of Directors | Management company | Belgium | ||||
Frans Corpeleijn | Dr J.P.Thijsselaan 4, 2061 BJ Bloemendaal, The Netherlands | Director | Chairman of the Frans Hals Museum, director at various companies | The Netherlands | ||||
France de Sadeleer | Plantin en Moretuslei 1A, B-2018 Antwerp, Belgium | Director | Director | Belgium | ||||
Paul de Lasteyrie du Saillant | 147 rue de Paris, 94220 Charenton-le-Pont, France | Director | COO Essilor SA | France | ||||
Michel Delloye, permanent representative of Cytifinance SA (3) | Avenue du Derby 12, 1050 Brussels, Belgium | Director | Management company | Belgium | ||||
Jacques Emsens | Avenue Louise 366, 1050 Brussels, Belgium | Director | Chairman of JPSeven | Belgium | ||||
Pascal Emsens | Chaussée de la Hulpe 120, 1000, Brussels, Belgium | Director | Portfolio Manager at AtlasInvest NV | Belgium | ||||
Walter Emsens | Boulevard International 9, 1070, Brussels, Belgium | Director | Managing Director of VAG Security | Belgium | ||||
Hans-Josef Grehl | 51365 Leverkusen, Germany | Director | Head of Procurement at Covestro AG | Germany | ||||
Christoph Grosspeter | Philosophenweg 12, D-92224 Amberg, Germany | Director | Managing director of Grosspeter 1ste VV GmbH & Co. KG | Germany | ||||
Jean-Pierre Labroue, permanent representative of Calavon Finance SAS (4) | 19 rue Pierre Semard, 75009 Paris, France | Director | Management company | France |
SCHEDULE 13D
CUSIP No. 30555Q108 | Page 14 of 14 |
Name of Directors and Executive Officers |
Principal Address | Position at Sibelco | Principal Occupation(1) |
Citizenship / State of Incorporation | ||||
Jean-Luc Deleersnyder | Plantin en Moretuslei 1A, B-2018 Antwerp, Belgium | Chief Executive Officer | Chief Executive Officer | Belgium | ||||
Kurt Decat | Plantin en Moretuslei 1A, B-2018 Antwerp, Belgium | Chief Financial Officer | Chief Financial Officer | Belgium | ||||
Laurence Boens | Plantin en Moretuslei 1A, B-2018 Antwerp, Belgium | Group Legal Counsel and Secretary | Group Legal Counsel and Secretary | Belgium | ||||
Olivier Lambrechts | Plantin en Moretuslei 1A, B-2018 Antwerp, Belgium | Executive Vice President of Corporate Development | Executive Vice President of Corporate Development | Belgium |
(1) | Unless otherwise indicated, the principal occupation of each person is employment by/service at Sibelco. |
(2) | IDW Consult BVBA, a management company incorporated in Belgium, is a director of Sibelco. Bert De Graeve, a Belgian citizen, is the managing director of IDW Consult BVBA and the permanent representative of IDW Consult BVBA on the board of directors of Sibelco. The principal occupation of Mr. Bert De Graeve is his role as chairman of the board of directors of Bekaert NV, which principal address is NV Bekaert SA, Bekaertstraat 2 BE-8550 Zwevegem, Belgium. |
(3) | Cytifinance SA, a management company incorporated in Belgium, is a director of Sibelco. Michel Delloye, a Belgian citizen, is the managing director of Cytifinance SA and the permanent representative of Cytifinance SA on the board of directors of Sibelco. The principal occupation of Mr. Delloye is his role as the managing director of Cytifinance SA. |
(4) | Calavon Finance SAS, a management company incorporated in France, is a director of Sibelco. Jean-Pierre Labroue, a French citizen, is the President of Calavon Finance SAS and the permanent representative of Calavon Finance SAS on the board of directors of Sibelco. The principal occupation of Mr. Labroue is his role as the President of Calavon Finance SAS. |
Exhibit 2
VOTING AND SUPPORT AGREEMENT
THIS VOTING AND SUPPORT AGREEMENT (this Agreement), is dated as of December 11, 2017 (the Effective Date), by and among Unimin Corporation, a Delaware corporation (Parent), Bison Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (Merger Sub), and the stockholders of Fairmount Santrol Holdings Inc. (the Company) listed on the signature pages attached hereto (the Stockholders, and, collectively with Parent and Merger Sub, the Parties). Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, concurrently with the execution and delivery of this Agreement, SCR-Sibelco NV, Parent, Merger Sub, Bison Merger Sub I, LLC, a Delaware limited liability company and wholly owned subsidiary of Parent (Merger Sub LLC), and the Company are entering into an Agreement and Plan of Merger, dated as of the date hereof (the Merger Agreement), providing for, among other things and subject to the terms and conditions of the Merger Agreement: (i) a business combination through the merger of Merger Sub with and into the Company (the Merger), with the Company surviving the Merger as a wholly-owned subsidiary of Parent; and (ii) a further business combination through the second merger of the Company with and into Merger Sub LLC (the Second Merger and, together with the merger, the Mergers) immediately following the consummation of the Merger, with Merger Sub LLC surviving the Second Merger as a wholly-owned subsidiary of Parent.
WHEREAS, as of the Effective Date, each Stockholder is the record and beneficial owner of the number of shares of Company Common Stock set forth opposite such Stockholder’s name on EXHIBIT 1 attached hereto (each, including any such Additional Securities (as defined below) an Owned Share).
WHEREAS, as a condition and inducement to the willingness of Parent, Merger Sub and Merger Sub LLC to enter into the Merger Agreement and in furtherance of the Mergers, the Stockholders wish to enter into this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements set forth in this Agreement and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
STOCKHOLDERS CONSENT;
AGREEMENT TO VOTE AND IRREVOCABLE PROXY
Section 1.1 | Agreement to Vote |
Each Stockholder hereby irrevocably and unconditionally agrees that, from the Effective Date until the earlier of (a) the time that the Company Stockholder Approval has been obtained and (b) termination of this Agreement in accordance with Section 4.1 (the Agreement Term), such Stockholder shall (i) take all such actions as may be reasonably required to cause each of such Stockholder’s Owned Shares to be present, in person or by proxy, at the Company Stockholders Meeting and (ii) at any Company Stockholders Meeting vote (or cause to be voted), to the extent entitled to vote thereon, all of such Stockholder’s Owned Shares:
(A) | in favor of (I) adoption of the Merger Agreement and the Transactions, including the Mergers and (II) the approval of any proposal to adjourn such Company Stockholders Meeting to a later date if there are not sufficient votes for adoption of the Merger Agreement and the Transactions, including the Mergers; and |
(B) | against (I) any Company Alternative Transaction, (II) any action that would reasonably be expected to result in a breach of or failure to perform any representation, warranty, covenant or agreement of the Company under the Merger Agreement or of such Stockholder under this Agreement, (III) any action that would reasonably be expected to prevent, impede, frustrate, interfere with, delay, postpone or adversely affect the consummation of the Mergers or the other Transactions (in contravention of the terms and conditions of the Merger Agreement), (IV) any merger agreement or merger (other than the Merger Agreement and the Mergers), consolidation, combination, material business transaction, sale of assets, reorganization, recapitalization, dissolution, liquidation or winding up of the Company or any Company Subsidiary, and (V) any amendment of the Company’s organizational documents that would reasonably be expected to impair the ability of the Company, Parent, Merger Sub or Merger Sub LLC to complete the Mergers, or that would or would reasonably be expected to prevent, impede, frustrate, interfere with, delay, postpone or adversely affect the consummation of the Mergers. |
Section 1.2 | Other Voting Rights |
For the avoidance of doubt, except as expressly set forth in this Agreement, nothing in this Agreement shall limit the right of any Stockholder to vote in favor of, against, or abstain with respect to any matter presented to the Company’s stockholders not addressed by this Agreement.
Section 1.3 | Grant of Irrevocable Proxy |
Each Stockholder hereby irrevocably appoints Parent and any designee of Parent, and each of them individually, as such Stockholder’s proxy and attorney-in-fact, with full power of substitution and resubstitution, to vote at the Company Stockholders Meeting during the Agreement Term, with respect to such Stockholder’s Owned Shares as of the applicable record date, in each case solely to the extent and in the manner specified in Section 1.1 (the Proxy); provided, however, that such Proxy shall be effective if, and only if, the Stockholder has not delivered to the Secretary of the Company, at least two Business Days prior to the Company Stockholders Meeting, a duly executed proxy card directing that such Stockholder’s Owned Shares be voted in accordance with Section 1.1. The Proxy is given to secure the performance of the duties of each Stockholder under this Agreement, and its existence will not be deemed to relieve any Stockholder of such Stockholder’s obligations under this Agreement. The Proxy shall expire and be deemed revoked automatically at the expiration of the Agreement Term or in the event of termination of this Agreement pursuant to Section 4.1.
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Section 1.4 | Nature of Irrevocable Proxy |
The Proxy granted by each Stockholder is irrevocable during the Agreement Term or until this Agreement is terminated pursuant to Section 4.1, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by any Stockholder with regard to such Stockholder’s Owned Shares and each Stockholder acknowledges that the Proxy constitutes an inducement for Parent, Merger Sub and Merger Sub LLC to enter into the Merger Agreement. The power of attorney granted by each Stockholder is a durable power of attorney and shall survive the bankruptcy, dissolution, death or incapacity of such Stockholder.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, on behalf of itself, severally, but not jointly, hereby represents and warrants to Parent and Merger Sub as of the Effective Date:
Section 2.1 | Power; Due Authorization; Binding Agreement |
Such Stockholder has the requisite power, authority and legal capacity (as applicable) to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation by such Stockholder of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate, partnership or other applicable action on the part of such Stockholder, and no other proceedings on the part of such Stockholder are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by such Stockholder and, assuming the due and valid authorization, execution and delivery hereof by the other Parties, constitutes a valid and binding agreement of such Stockholder, enforceable against such Stockholder in accordance with its terms, except that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, relating to creditors’ rights generally.
Section 2.2 | Ownership of Shares |
Such Stockholder’s Owned Shares are owned beneficially and of record by such Stockholder. Such Stockholder does not beneficially own any capital stock or other securities of the Company other than the Owned Shares and does not beneficially own any rights to purchase or acquire any shares of capital stock of the Company except as set forth opposite such Stockholder’s name on EXHIBIT 1. Other than restrictions in favor of Parent pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act, as of the Effective Date such Stockholder has (except as otherwise permitted by this Agreement) sole voting power and sole dispositive power with respect to the matters set forth in Section 1.1 in respect of all of the Owned Shares of such Stockholder and no proxies have been given in respect of any or all of such Owned Shares other than proxies which have been validly revoked prior to the Effective Date.
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Section 2.3 | No Conflict |
The execution and delivery of this Agreement by such Stockholder does not, and the performance of the terms of this Agreement by such Stockholder will not, (a) require the consent or approval of, or any filing with, any other person or Governmental Entity, (b) conflict with or violate any organizational document of such Stockholder, (c) conflict with or violate or result in any breach of, or default (with or without notice or lapse of time, or both) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of any Liens on, any of the Owned Shares pursuant to any Contract to which such Stockholder is a party or by which such Stockholder or any of the Owned Shares are bound, or (d) violate any Applicable Laws applicable to such Stockholder or any of its assets (including the Owned Shares), except for any of the foregoing which would not, individually or in the aggregate, prevent, materially delay or impair in any material respect the Stockholder’s ability to perform its obligations under this Agreement.
Section 2.4 | Acknowledgment |
Such Stockholder understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon such Stockholder’s execution, delivery and performance of this Agreement.
Section 2.5 | Transaction Fee |
Such Stockholder has not employed any investment banker, broker or finder in connection with the transactions contemplated by the Merger Agreement who is entitled to any fee or any commission from Parent or the Company or any of their respective Subsidiaries in connection with or upon consummation of the Mergers or any other transaction contemplated by the Merger Agreement.
Section 2.6 | Actions and Proceedings |
There are no (a) Actions pending or, to the knowledge of such Stockholder, threatened against such Stockholder or any of its assets or (b) outstanding Orders or Contracts settling any actual or threatened Action to which such Stockholder or any of its assets are subject or bound, in each case, which would prevent, materially delay or impair in any material respect such Stockholder’s ability to perform its obligations under this Agreement.
ARTICLE III
COVENANTS OF THE STOCKHOLDERS
Section 3.1 | Restriction on Transfer, Proxies and Non-Interference |
Each Stockholder hereby agrees, during the Agreement Term, not to, directly or indirectly, (a) sell, transfer, pledge, encumber, assign or otherwise dispose of, or enter into any Contract, option or other arrangement or understanding with respect to the sale, transfer, pledge, encumbrance, assignment or other disposition of, or limitation on the voting rights of, any of the Owned Shares or any economic interest therein (any such action, a Transfer), (b) grant any proxies or powers of attorney with respect to the Owned Shares of such Stockholder, deposit any such Owned Shares into a voting trust or enter into a voting agreement with respect to any such Owned Shares, in each case with respect to any vote on the approval and adoption of the Merger Agreement or any other matters set forth in Section 1.1 of this Agreement, (c) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act) with any persons with respect to any securities of the Company, or (d) commit or agree to take any of the foregoing actions during the Agreement Term; provided, that, the foregoing notwithstanding, the following Transfers are permitted: (i) Transfers of Owned Shares to any Affiliate of such Stockholder who has agreed in writing (the form and substance of which is reasonably acceptable to Parent) to be bound by the terms of this Agreement; or (ii) Transfers of Owned Shares with Parent’s prior written consent.
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Section 3.2 | Additional Securities |
From the Effective Date until the earlier of (a) the termination of this Agreement pursuant to Section 4.1 and (b) the Company Stockholders Meeting, in the event any Stockholder becomes the record or beneficial owner (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended) of (i) any shares of Company Common Stock or any other voting securities of the Company, (ii) any securities which may be converted into or exchanged for such share or other securities, or (iii) any securities issued in replacement of, or as a dividend or distribution on, or otherwise in respect of, such shares or other securities (collectively, Additional Securities), such Additional Securities will be subject to the terms of this Agreement and the covenants applicable to the Owned Shares hereunder shall apply to such Additional Securities as though owned by the Stockholder on the Effective Date.
Section 3.3 | Merger Agreement Obligations |
Each Stockholder agrees that it shall not, and shall cause its Affiliates (other than passive investors in the Stockholder who are not otherwise Affiliates of the Stockholder or involved in advising or managing such Stockholder or any of its Affiliates) and each of its and their respective Representatives not to, directly or indirectly through another person, (a) solicit, initiate or knowingly encourage (including by way of furnishing information), or knowingly take any other action designed to facilitate, any inquiries regarding, or the making of, any proposal the consummation of which would constitute a Company Alternative Transaction, (b) engage or participate in any substantive discussions or negotiations, or cooperate in any way with any person (or group of persons), with respect to any inquiries regarding, or the making of, any proposal the consummation of which would constitute a Company Alternative Transaction, except to notify such person (or group of persons) as to the existence of the provisions of this Section 3.3, (c) grant any waiver or release under (i) any standstill provision in any Contract to which the Company is a party or (ii) any confidentiality provision in any Contract to which the Company is a party other than, with respect to this clause (ii), any waiver or release under a confidentiality provision in any agreement entered into by the Company which is not related to, or in contemplation of, a Company Alternative Transaction (except, in the case of this clause (c), if the failure to do so would be reasonably likely to be inconsistent with the fiduciary duties of the Company Board under Applicable Law), or (d) resolve, publicly propose or agree to do any of the foregoing; provided that the foregoing shall not restrict such Stockholder, or any of such Stockholder’s directors, officers, employees, partners, managers, members or Affiliates, from taking any such actions on behalf of or as a representative of the Company that would not constitute a breach of the Merger Agreement.
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Section 3.4 | No Limitations on Actions |
Parent expressly acknowledges that each Stockholder is entering into this Agreement solely in such Stockholder’s capacity as the beneficial owner of Owned Shares and this Agreement shall not limit or otherwise affect the actions or fiduciary duties of such Stockholder, or any of such Stockholder’s Affiliates, in such Stockholder’s, or any of such Stockholder’s Affiliates’, capacity, if applicable, as a director of the Company. Parent shall not assert any claim that any action taken by such Stockholder, or any of such Stockholder’s Affiliates, in such Stockholder’s, or any of such Stockholder’s Affiliates’, capacity, if applicable, as a director of the Company violates any provision of this Agreement.
Section 3.5 | Further Assurances |
From time to time, at the reasonable request of Parent and without further consideration, each Stockholder shall, at Parent’s cost and expense, use reasonable best efforts to execute and deliver such additional documents and take all such further action as may be reasonably necessary to comply with such Stockholder’s obligations under this Agreement.
Section 3.6 | General Covenants |
Each Stockholder agrees that such Stockholder shall not:
(a) | enter into any Contract with any person or take any other action that violates or conflicts with or would reasonably be expected to violate or conflict with, or result in or give rise to a violation of or conflict with, such Stockholder’s representations, warranties, covenants and obligations under this Agreement; or |
(b) | take any action that would restrict or otherwise affect such Stockholder’s legal power, authority and right to comply with and perform such Stockholder’s covenants and obligations under this Agreement. |
ARTICLE IV
MISCELLANEOUS
Section 4.1 | Termination of this Agreement |
This Agreement, and all obligations, terms and conditions contained herein, shall automatically terminate without any further action required by any Party upon the earliest to occur of: (a) the termination of the Merger Agreement in accordance with its terms, (b) the Effective Time, and (c) the Board of Directors of the Company making a Company Recommendation Change. In addition to the foregoing, this Agreement may be terminated, (d) with respect to an individual Stockholder, (i) at any time by written consent of Parent and such Stockholder and (ii) by the Stockholder following any amendment, change or modification to the Merger Agreement affecting the Merger Consideration in a manner detrimental to the Stockholder or Article VII of the Merger Agreement or that would other otherwise have a material adverse effect on the Stockholder, or (e) with respect to all Stockholders, at any time by written consent of the Parties.
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Section 4.2 | Effect of Termination |
In the event of termination of this Agreement pursuant to Section 4.1, this Agreement shall become void and of no effect with no liability on the part of any Party; provided, however, no such termination shall relieve any Party from any liability for any breach of this Agreement occurring prior to such termination and the provisions of this ARTICLE IV, shall survive any such termination. Notwithstanding the foregoing, termination of this Agreement shall not prevent any Party from seeking any remedies (at law or in equity) against any other Party for that Party’s breach of any of the terms of this Agreement prior to the date of termination.
Section 4.3 | Entire Agreement; Assignment. |
This Agreement (together with the Merger Agreement, to the extent referred to in this Agreement) and any documents delivered by the Parties in connection herewith constitute the entire agreement among the Parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof. Other than as set forth in Section 4.12, nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the Parties any rights or remedies hereunder. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by any Party without the prior written consent of the other Parties, and any such assignment without such prior written consent shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective permitted successors and assigns.
Section 4.4 | Amendments and Waivers |
This Agreement may only be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by each of the Parties, or in the case of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by Parent, Merger Sub or Merger Sub LLC in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
Section 4.5 | Notices |
All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed given if delivered personally, or, if confirmed, faxed or emailed, or sent by overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
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If to the Stockholders:
ASP FML Holdings, LLC
c/o American Securities
299 Park Avenue, 34th Floor
New York, NY 10171
Attn: Eric L. Schondorf
Email: [email protected]
with a copy to:
Charles D. Fowler
c/o Fairmount Santrol Holdings Inc.
8334 Mayfield Road
Chesterland, OH 44026
Attn: Dave Crandall, General Counsel
Email: [email protected] and
If to Parent or Merger Sub:
Unimin Corporation
258 Elm Street
New Canaan, CT 06840
Attn: General Counsel
Facsimile: +1 (203) 966-1977
with a copy to:
Freshfields Bruckhaus Deringer US
LLP
601 Lexington Avenue
New York, NY 10022
Attn: Peter D. Lyons, Esq.
Email: [email protected]
Attn: Omar Pringle, Esq.
Email: [email protected]
Facsimile: (212) 277 4001
Section 4.6 | Governing Law; Jurisdiction; Waiver of Jury Trial |
(a) | This Agreement and all Actions (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the actions of Parent or Merger Sub in the negotiation, administration, performance and enforcement thereof shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under any applicable principles of conflicts of laws thereof. |
(b) | In any Action between the Parties arising out of or relating to this Agreement or any of the transactions contemplated hereby, each of the Parties (i) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware in and for New Castle County, Delaware or any federal court sitting in the State of Delaware; (ii) agrees that it will not attempt to deny or defeat such jurisdiction by motion or other request for leave from such court; and (iii) agrees that it will not bring any such action in any court other than the Court of Chancery for the State of Delaware in and for New Castle County, Delaware, or any federal court sitting in the State of Delaware and appellate courts thereof. Each Party irrevocably consents to the service of process outside the territorial jurisdiction of the courts referred to in this Section 4.6 in any such Action by mailing copies thereof by registered or certified United States mail, postage prepaid, return receipt requested, to its address as specified in or pursuant to Section 4.5. However, the foregoing shall not limit the right of a Party to effect service of process on the other party by any other legally available method. |
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(c) | EACH STOCKHOLDER AND EACH OF PARENT AND MERGER SUB WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT. |
Section 4.7 | Specific Performance |
The Parties acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the performance of terms and provisions of this Agreement in any court referred to Section 4.6 above, without proof of actual damages (and each Party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), this being in addition to any other remedy to which they are entitled at law or in equity. The Parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to law or inequitable for any reason, nor to assert that a remedy of monetary damages would provide an adequate remedy for any such breach.
Section 4.8 | Counterparts; Effectiveness |
This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (including by electronic transmission) to the other Parties.
Section 4.9 | Headings |
The headings in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 4.10 | Severability |
If any term or other provision of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect and shall in no way be affected, impaired or invalidated. Upon a determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by Applicable Law in a mutually acceptable manner to the end that the Transactions are fulfilled to the fullest extent possible.
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Section 4.11 | Interpretation |
When a reference is made in this Agreement to an Article, Section or Exhibit, such reference shall be to an Article or Section of, or an Exhibit to, this Agreement, unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “hereto,” “hereby,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The term “or” is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, unless otherwise specifically indicated. References to a person are also to its permitted successors and assigns. Unless otherwise specifically indicated, all references to dollars and $ will be deemed references to the lawful money of the United States of America.
Section 4.12 | Publication |
Each Stockholder hereby permits Parent, the Company and Merger Sub to publish and disclose in any documents or schedules filed with the SEC and any other disclosures or filings required by Applicable Law such Stockholder’s identity and ownership of the Owned Shares and the nature of such Stockholder’s commitments pursuant to this Agreement.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.
PARENT | ||
UNIMIN CORPORATION | ||
By: | /s/ Campbell Jones | |
Name: | Campbell Jones | |
Title: |
President & CEO | |
MERGER SUB | ||
BISON MERGER SUB, INC. | ||
By: | /s/ Kurt Decat | |
Name: | Kurt Decat | |
Title: |
President |
[Signature Page to Voting and Support Agreement]
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STOCKHOLDERS | ||
ASP FML HOLDINGS, LLC | ||
By: | /s/ Michael Sand | |
Name: | Michael Sand | |
Title: |
Vice President | |
CHARLES D. FOWLER | ||
By: | /s/ Charles D. Fowler |
[Signature Page to Voting and Support Agreement]
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EXHIBIT 1
COMPANY STOCK OWNERSHIP
Stockholder | Number of Shares | |||
ASP FML Holdings, LLC | 48,156,628 | |||
Charles D. Fowler | 10,258,824.666 |
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Exhibit 3
JOINT FILING AGREEMENT
This Joint Filing Agreement, dated as of December 21, 2017, is by and among SCR-Sibelco NV and Unimin Corporation (each a “Filer” and, collectively, the “Filers”).
Each of the Filers may be required to file with the United States Securities and Exchange Commission a statement on Schedule 13D and/or 13G (and any amendments thereto) with respect to shares of common stock, $0.01 par value per share, of Fairmount Santrol Holdings Inc. that may be beneficially owned by them, directly or indirectly, from time to time.
Pursuant to and in accordance with Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934, as amended, the Filers hereby agree to file a single statement on Schedule 13D and/or 13G (and any amendments thereto) on behalf of each of such parties, and hereby further agree to file this Joint Filing Agreement as an exhibit to such statement, as required by such rule.
This Joint Filing Agreement may be terminated by any of the Filers upon one week’s prior written notice (or such lesser period of notice as the Filers may mutually agree) to the other party.
Executed and delivered as of the date first above written.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned hereby execute this Joint Filing Agreement as of the date first set forth above.
SCR-Sibelco NV | ||
By: | /s/ Kurt Decat | |
Name: Kurt Decat | ||
Title: Chief Financial Officer, Member of Executive Committee | ||
By: | /s/ Jean-Luc Deleersnyder | |
Name: Jean-Luc Deleersnyder | ||
Title: Chief Executive Officer, Member of Executive Committee | ||
Unimin Corporation | ||
By: | /s/ Campbell J. Jones | |
Name: Campbell J. Jones | ||
Title: President and Chief Executive Officer |