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Form SC 13D FAIRMOUNT SANTROL HOLDIN Filed by: Unimin Corp

December 21, 2017 4:06 PM

 

 

 

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

 

CUSIP No. 30555Q108   Page 4 of 14

 

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

 

CUSIP No. 30555Q108   Page 5 of 14

 

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

 

CUSIP No. 30555Q108   Page 6 of 14

 

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

 

CUSIP No. 30555Q108   Page 7 of 14

 

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

 

CUSIP No. 30555Q108   Page 8 of 14

 

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

 

CUSIP No. 30555Q108   Page 9 of 14

 

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

 

CUSIP No. 30555Q108   Page 10 of 14

 

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 1.1Agreement 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 1.2Other 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 1.3Grant 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 1.4Nature 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 2.1Power; 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 2.2Ownership 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 2.3No 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 2.4Acknowledgment

 

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 2.5Transaction 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 2.6Actions 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 3.1Restriction 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 3.2Additional 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 3.3Merger 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 3.4No 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 3.5Further 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 3.6General 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 4.1Termination 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 4.2Effect 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 4.3Entire 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 4.4Amendments 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 4.5Notices

 

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 4.6Governing 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 4.7Specific 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 4.8Counterparts; 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 4.9Headings

 

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 4.10Severability

 

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 4.11Interpretation

 

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 “hereunderand 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 4.12Publication

 

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

 

 

 

Categories

SEC Filings