SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
June 11, 1996
STERLING CHEMICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-10059 76-0185186
(State of Incorporation) (Commission File Number) (IRS Employer
Identification No.)
1200 Smith Street, Suite 1900
Houston, Texas 77002-4312
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (713) 650-3700
Item 5. Other Events.
This Form 8-K/A amends exhibit 2 of the Form 8-K filed on
April 26, 1996 with the attached exhibit 2.1, First Amendment
to Merger Agreement dated as of June 11, 1996.
Item 7. Financial Statements, Proforma Financial Information and Exhibits.
(c) Exhibits.
2.1 First Amendment to Merger Agreement dated as of June 11, 1996.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: June 14, 1996 STERLING CHEMICALS, INC.
By:[signature appears here]
Jim P. Wise
Vice President - Finance and
Chief Financial Officer
EXHIBIT INDEX
Exhibit
Number Description of Exhibit Page
2.1 First Amendment to Merger Agreement dated as of June 11, 1996 5
EXHIBIT 2.1
STX ACQUISITION CORP.
Eight Greenway Plaza, Suite 702
Houston, Texas 77046
June 11, 1996
Sterling Chemicals, Inc.
1200 Smith Street
Suite 1900
Houston, Texas 77002
Re: First Amendment to Merger Agreement
Gentlemen:
Reference is made to that certain Agreement and Plan of Merger (the
"Merger Agreement") dated as of April 24, 1996 between STX Acquisition Corp.,
a Delaware corporation ("STX"), and Sterling Chemicals, Inc., a Delaware
corporation ("SCI").
STX and SCI desire to amend the Merger Agreement in certain respects.
Therefore, in consideration of the mutual covenants and agreements contained
herein and in the Merger Agreement, STX and SCI, intending to be legally
bound, hereby agree as follows:
Section 1. Amendment to Section 2.05 of the Merger Agreement. Section
2.05(a) of the Merger Agreement is hereby amended to read in its entirety
as follows:
(a) At the Effective Time, the Restated Certificate of Incorporation
of the Company, as in effect on the date thereof, shall be amended to
read in its entirety as set forth in Exhibit B and, as so amended,
shall be the certificate of incorporation of the Surviving Corporation
after the Effective Time until thereafter changed or amended as provided
therein or by the DGCL
Section 2. Amendment to Section 7.07(c) of the Merger Agreement. Section
7.07(c) of the Merger Agreement is hereby amended by replacing the phrase
"within 45 days after the date hereof," contained therein with the phrase
"on or before June 24, 1996,".
Section 3. Amendment to Section 7.07(d) of the Merger Agreement. Section
7.07(d) of the Merger Agreement is hereby amended by replacing the figure
"$107,000,000" contained therein with the figure "$96,574,952".
Section 4. Amendment to Section 9.01(c)(ix) of the Merger Agreement.
Section 9.01(c)(ix) of the Merger Agreement is hereby amended by replacing
the phrase "within 45 days after the date hereof" contained therein with the
phrase "on or before June 24, 1996".
Section 5. Attachment of Exhibit B to Merger Agreement. The Merger
Agreement is hereby amended by attaching thereto as Exhibit B the form of
Restated Certificate of Incorporation of the Company set forth in
Exhibit B attached hereto and incorporated herein for all purposes.
Section 6. Effect of Amendments. Except as amended and modified by this
letter agreement, the Merger Agreement shall continue in full force and
effect. The Merger Agreement and this letter agreement shall be read,
taken and construed as one and the same instrument. Upon the effectiveness
of this letter agreement, each reference in the Merger Agreement to
"this Agreement" shall mean and be a reference to the Merger
Agreement as amended hereby.
Section 7. Counterparts. This letter agreement may be signed in
any number of counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument,
and it shall not be necessary in making proof of this letter agreement
to produce or account for more than one such counterpart.
Section 8. Entire Agreement. This letter agreement (i) constitutes
the entire contract between the parties relative to the amendments to
the Merger Agreement made hereby, (ii) supersedes all prior agreements,
consents and understandings relating to such amendments and (iii) may
not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements of the parties.
Section 9. Governing Law. THIS LETTER AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF
THE PARTIES SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE
OF DELAWARE, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW.
Section 10. Binding Effect. This letter agreement shall be
binding upon and shall inure to the benefit of and be enforceable
by the parties hereto and their respective successors and assigns.
Section 11. Effectiveness. Upon the execution and delivery of
this letter agreement by the parties hereto, this letter agreement
shall be and become a binding agreement among the parties hereto.
If the foregoing accurately sets forth your agreement with respect
to the matters covered hereby, please so indicate by signing your
names in the spaces provided below.
Very truly yours,
STX ACQUISITION CORP.
By: [signature appears here]
Printed Name: Hunter Nelson
Title: Vice President
AGREED TO AND ACCEPTED as of
the date first above written:
STERLING CHEMICALS, INC.
By: [signature appears here]
Name: J. Virgil Waggoner
Title: President and Chief Executive Officer
EXHIBIT B
RESTATED CERTIFICATE OF INCORPORATION
OF
STERLING CHEMICALS, INC.
ARTICLE I
Name, Registration and Purpose
Section 1.01. Name. The name of the Corporation is
"Sterling Chemicals Holdings, Inc.".
Section 1.02. Registered Office and Registered Agent.
The registered office of the Corporation in the State of
Delaware is located at Corporation Trust Center, 1209
Orange Street in the City of Wilmington, County of New
Castle. The name of the registered agent of the Corporation
at such address is The Corporation Trust Company.
Section 1.03. Purpose. The purpose for which the
Corporation is organized is to engage in any lawful
acts and activities for which corporations may be organized
under the General Corporation Law of the State of Delaware
("DGCL"), and the Corporation shall have the power to perform
all lawful acts and activities.
ARTICLE II
Capitalization
Section 2.01. Authorized Capital. (a) The total number of
shares of stock that the Corporation shall have the authority
to issue is 22,000,000 shares of capital stock, consisting of
(i) 2,000,000 shares of preferred stock, par value $0.01
per share (the "Preferred Stock"), and (ii) 20,000,000 shares
of common stock, par value $0.01 per share (the "Common Stock").
(b) Subject to the provisions of this Certificate of
Incorporation and the Preferred Stock Designation (as defined
below) creating any series of Preferred Stock, the Corporation
may issue shares of its capital stock from time to time for
such consideration (not less than the par value thereof) as
may be fixed by the Board of Directors of the Corporation
(the "Board of Directors"), which is expressly authorized to
fix the same in its absolute discretion subject to the
foregoing conditions. Shares so issued for which the
consideration shall have been paid or delivered to the
Corporation shall be deemed fully paid stock and shall not
be liable to any further call or assessment thereon, and the
holders of such shares shall not be liable for any further
payments in respect of such shares.
(c) The right to cumulate votes for the election of
directors as provided in Section 214 of the DGCL shall
not be granted and is hereby expressly denied.
Section 2.02. Preferred Stock. (a) The Preferred Stock
may be issued from time to time in one or more series.
Authority is hereby expressly granted to and vested in
the Board of Directors to authorize from time to time the
issuance of Preferred Stock in one or more series. With
respect to each series of Preferred Stock authorized by it,
the Board of Directors shall be authorized to establish by
resolution or resolutions, and by filing a certificate
pursuant to the applicable law of the State of Delaware
(a "Preferred Stock Designation"), the following to the
fullest extent now or hereafter permitted by the DGCL:
(i) the designation of such series;
(ii) the number of shares to constitute such series;
(iii) whether such series is to have voting rights
(full, special or limited) or is to be without
voting rights;
(iv) if such series is to have voting rights, whether
or not such series is to be entitled to vote as a
separate class either alone or together with the
holders of the Common Stock or one or more other
series of Preferred Stock;
(v) the preferences and relative, participating,
optional, conversion or other special rights (if any)
of such series and the qualifications, limitations
or restrictions (if any) with respect to such series;
(vi) the redemption rights and price(s), if any, of such
series, and whether or not the shares of such series
shall be subject to the operation of retirement or
sinking funds to be applied to the purchase or
redemption of such shares for retirement and, if such
retirement or sinking funds or funds are to be
established, the periodic amount thereof and the terms
and provisions relative to the operation thereof;
(vii) the dividend rights and preferences (if any) of such
series, including, without limitation, (A) the rates
of dividends payable thereon, (B) the conditions upon
which and the time when such dividends are payable,
(C) whether or not such dividends shall be cumulative
or noncumulative and, if cumulative, the date or dates
from which such dividends shall accumulate and (D) whether
or not the payment of such dividends shall be preferred
to the payment of dividends payable on the Common Stock
or any other series of Preferred Stock;
(viii) the preferences (if any), and the amounts thereof,
which the holders of such series shall be entitled to
receive upon the voluntary or involuntary liquidation,
dissolution or winding-up of, or upon any distribution
of the assets of, the Corporation;
(ix) whether or not the shares of such series, at the option
of the Corporation or the holders thereof or upon the
happening of any specified event, shall be convertible
into or exchangeable for (A) shares of Common Stock, (B)
shares of any other series of Preferred Stock or (C)
any other stock or securities of the Corporation;
(x) if such series is to be convertible or exchangeable, the
price or prices or ratio or ratios or rate or rates at
which such conversion or exchange may be made and the
terms and conditions (if any) upon which such price or
prices or ratio or ratios or rate or rates may be adjusted; and
(xi) such other rights, powers and preferences with respect
to such series as may to the Board of Directors seem advisable.
Any series of Preferred Stock may vary from any other series of
Preferred Stock in any or all of the foregoing respects and in
any other manner.
(b) The Board of Directors may, with respect to any existing
series of Preferred Stock but subject to the Preferred Stock
Designation creating such series, increase the number of shares
of Preferred Stock designated for such series by a resolution
adding to such series authorized and unissued shares of
Preferred Stock not designated for any other series. The Board
of Directors may, with respect to any existing series of
Preferred Stock but subject to the Preferred Stock Designation
creating such series, decrease the number of shares of Preferred
Stock designated for any existing series by a resolution
subtracting from such series shares of Preferred Stock designated
for such series (but not below the number of shares of such series
then outstanding), and the shares so subtracted shall become
authorized, unissued and undesignated shares of Preferred Stock.
(c) No vote of the holders of the Common Stock or the Preferred
Stock shall, unless otherwise expressly provided in a Preferred
Stock Designation, be a prerequisite to the issuance of any
shares of any series of the Preferred Stock authorized by and
complying with the conditions of this Certificate of Incorporation.
Shares of any series of Preferred Stock that have been authorized
for issuance pursuant to this Certificate of Incorporation and
that have been issued and reacquired in any manner by the
Corporation (including upon conversion or exchange thereof) shall
be restored to the status of authorized and unissued shares of
Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of
the Board of Directors and a Preferred Stock Designation as
set forth above.
Section 2.03. Common Stock. (a) The holders of shares of
the Common Stock shall be entitled to vote upon all matters
submitted to a vote of the common stockholders of the Corporation
and shall be entitled to one vote for each share of the Common
Stock held. (b) Subject to the prior rights and preferences
(if any) applicable to shares of Preferred Stock of any series,
the holders of shares of the Common Stock shall be entitled to
receive such dividends (payable in cash, stock or otherwise) as
may be declared thereon by the Board of Directors at any time
and from time to time out of any funds of the Corporation legally
available therefor.
(c) In the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, after payment or
provision for payment of the debts and other liabilities of the
Corporation, and subject to the preferential or other rights
(if any) of the holders of shares of the Preferred Stock in
respect thereof, the holders of shares of the Common Stock shall
be entitled to receive all the remaining assets of the Corporation
available for distribution to its stockholders, ratably in
proportion to the number of shares of the Common Stock held by them.
For purposes of this paragraph (c), a liquidation, dissolution or
winding-up of the Corporation shall not be deemed to be occasioned
by or to include (i) any consolidation or merger of the Corporation
with or into another corporation or other entity or (ii) a sale,
lease, exchange or conveyance of all or a part of the assets of
the Corporation.
Section 2.04. Stock Options, Warrants, etc. Unless otherwise
expressly prohibited in a Preferred Stock Designation creating
any series of Preferred Stock, the Corporation shall have
authority to create and issue warrants, rights and options
entitling the holders thereof to purchase from the Corporation
shares of the Corporation's capital stock of any class or
series or other securities of the Corporation for such
consideration and to such persons, firms or corporations as
the Board of Directors, in its sole discretion, may determine,
setting aside from the authorized but unissued stock of the
Corporation the requisite number of shares for issuance upon
the exercise of such warrants, rights or options. Such
warrants, rights and options shall be evidenced by one or
more instruments approved by the Board of Directors.
The Board of Directors shall be empowered to set the exercise
price, duration, time for exercise and other terms of such
warrants, rights or options; provided, however, that the
consideration to be received for any shares of capital stock
subject thereto shall not be less than the par value thereof.
ARTICLE III
Directors
Section 3.01. Number and Term. The number of directors
of the Corporation shall from time to time be fixed exclusively
by the Board of Directors in accordance with, and subject to
the limitations set forth in, the bylaws of the Corporation
(the "Bylaws"); provided, however, that the Board of Directors
shall at all times consist of a minimum of three and a maximum of
fifteen members, subject, however, to increases above fifteen
members as may required in order to permit the holders of any
series of Preferred Stock to exercise their right (if any) to
elect additional directors under specified circumstances.
No decrease in the number of directors shall have the effect
of shortening the term of any incumbent director. Anything
in this Certificate of Incorporation or the Bylaws to the
contrary notwithstanding, each director shall hold office until
his successor is elected and qualified or until his earlier
death, resignation or removal.
Section 3.02. Nomination and Election. (a) Nominations of
persons for election or reelection to the Board of Directors
may be made by or at the direction of the Board of Directors.
The Bylaws may set forth procedures for the nomination of
persons for election or reelection to the Board of Directors
and only persons who are nominated in accordance with such
procedures (if any) shall be eligible for election or
reelection as directors of the Corporation; provided,
however, that such procedures shall not infringe upon
(i) the right of the Board of Directors to nominate persons
for election or reelection to the Board of Directors or
(ii) the rights of the holders of any series of Preferred Stock,
voting separately by class or series, to elect additional
directors under specified circumstances.
(b) Each director shall be elected in accordance with this
Certificate of Incorporation, the Bylaws and applicable law.
Election of directors by the Corporation's stockholders need
not be by written ballot unless the Bylaws so provide.
Section 3.03. Removal. No director may be removed except
by the affirmative vote of the holders of not less than 66-2/3%
in voting power of all the outstanding shares of capital
stock of the Corporation entitled to vote generally in an
election of directors, voting together as a single class.
The Board of Directors may not remove any director, and no
recommendation by the Board of Directors that a director be
removed may be made to the Corporation's stockholders
unless such recommendation is set forth in a resolution
adopted by the affirmative vote of not less than two-thirds
of the whole Board of Directors.
Section 3.04. Vacancies. (a) In case any vacancy shall
occur on the Board of Directors because of death, resignation
or removal, such vacancy may be filled only by a majority
(or such higher percentage as may be specified in the Bylaws)
of the directors remaining in office (though less than a quorum),
and the director so appointed shall serve for the unexpired
term of his predecessor or until his successor is elected and
qualified or until his earlier death, resignation or removal.
If there are no directors then in office, an election of
directors may be held in the manner provided by applicable law.
(b) Any newly-created directorship resulting from any increase
in the number of directors may be filled only by a majority
(or such higher percentage as may be specified in the Bylaws)
of the directors then in office (though less than a quorum).
Each director so appointed shall hold office until his successor
is elected and qualified or until his earlier death, resignation
or removal.
(c) Except as expressly provided in this Certificate of
Incorporation or as otherwise provided by applicable law,
stockholders of the Corporation shall not have the right to fill
vacancies or newly-created directorships on the Board of Directors.
Section 3.05. Subject to Rights of Holders of Preferred Stock.
Notwithstanding the foregoing provisions of this Article III,
if the Preferred Stock Designation creating any series of
Preferred Stock entitles the holders of such Preferred Stock,
voting separately by class or series, to elect additional
directors under specified circumstances, then all provisions of
such Preferred Stock Designation relating to the nomination,
election, term of office, removal, filling of vacancies
and other features of such directorships shall, as to such
directorships, govern and control over any conflicting provisions
of this Article III.
Section 3.06. Limitation of Access of Stockholders to Books
and Records. In furtherance of, and not in limitation of, the
powers conferred by law, the Board of Directors is expressly
authorized and empowered to determine from time to time whether
and to what extent, and at what times and places, and under
what conditions and regulations, the accounts and books of the
Corporation, or any of them, shall be open to inspection of
stockholders and, except as so determined or as expressly
provided in this Certificate of Incorporation or in any
Preferred Stock Designation, no stockholder shall have any
right to inspect any account, book or document of the
Corporation other than such rights as may be conferred by
applicable law.
Section 3.07. Limitation of Personal Liability. (a) No
person who is or was a director of the Corporation shall be
personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the DGCL or (iv) for any transaction
from which the director derived an improper personal benefit.
(b) If the DGCL is hereafter amended to authorize corporate
action further limiting or eliminating the personal liability
of directors, then the personal liability of the directors to
the Corporation or its stockholders shall be limited or
eliminated to the full extent permitted by the DGCL, as so
amended from time to time. Any repeal or modification of this
Section 3.07 shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a director
of the Corporation or its stockholders arising from an act or
omission occurring prior to the time of such repeal or
modification.
ARTICLE IV
Amendment of Bylaws
The Board of Directors is expressly authorized and empowered
to adopt, alter, amend or repeal the Bylaws. Stockholders of
the Corporation shall have the power to alter, amend, expand
or repeal the Bylaws but only by the affirmative vote of the
holders of not less than 66-2/3% in voting power of all
outstanding shares of capital stock of the Corporation entitled
to vote generally at an election of directors, voting together
as a single class.
ARTICLE V
Actions and Meetings of Stockholders
Section 5.01. No Action by Written Consent. No action shall
be taken by the stockholders of the Corporation except at an
annual or special meeting of stockholders. Stockholders of the
Corporation may not act by written consent in lieu of a meeting.
Section 5.02. Meetings. (a) Meetings of the stockholders of
the Corporation (annual or special) may only be called by the
Board of Directors or such officer or officers of the
Corporation as the Board of Directors may from to time authorize
to call meetings of the stockholders of the Corporation.
Stockholders of the Corporation shall not be entitled to call any
meeting of stockholders or to require the Board of Directors or
any officer or officers of the Corporation to call a meeting of
stockholders except as otherwise expressly provided by law or in
the Preferred Stock Designation creating any series of Preferred Stock.
(b) Stockholders of the Corporation shall have the right to
propose business (including, without limitation, the nomination
of any person for election or reelection as a director of the
Corporation) for consideration at any meeting of stockholders
but only as may be expressly provided in, and then only in
compliance with, the Bylaws.
(c) Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice or waivers
of notice of such meeting. The person presiding at a meeting of
stockholders may determine whether business (including, without
limitation, the nomination of any person for election or reelection
as a director of the Corporation) has been properly brought before
the meeting and, if the facts so warrant, such person may refuse to
transact any business at such meeting which has not been properly
brought before such meeting.
Section 5.03. Appoint and Remove Officers, etc. The stockholders
of the Corporation shall have no right or power to appoint or remove
officers of the Corporation nor to abrogate the power of the Board
of Directors to elect and remove officers of the Corporation.
Except as provided in Section 3.03, the stockholders of the
Corporation shall have no power to appoint or remove directors as
members of committees of the Board of Directors nor to abrogate the
power of the Board of Directors to establish one or more such
committees or the power of any such committee to exercise the
powers and authority of the Board of Directors.
ARTICLE VI
Indemnification of Directors and Officers
The Corporation shall indemnify, to the fullest extent permitted
by applicable law, each person who is or was a director or officer
of the Corporation and each person who, at the request of the
Board of Directors of the Corporation or an officer of the
Corporation, is or was a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, and may
indemnify each employee and agent of the Corporation and all other
persons whom the Corporation is authorized to indemnify under the
provisions of the DGCL. Without limiting the generality or effect
of the foregoing, the Corporation may enter into one or more
agreements with any person which provide for indemnification
greater or different than that provided in this Section 6.01.
Any amendment or repeal of this Section 6.01 shall not adversely
affect any right or protection existing hereunder in respect of
any act or omission occurring prior to such amendment or repeal.
ARTICLE VII
Election to be Governed by Section 203 of the DGCL
The Corporation hereby elects to be governed by Section 203
of the DGCL; provided, however, that the provisions of this
Article VII shall not apply to restrict a business combination
between the Corporation and an interested stockholder (as
defined in Section 203 of the DGCL) of the Corporation if
either (i) such business combination was approved by the
Board of Directors prior to the time that such stockholder
became an interested stockholder or (ii) such stockholder
became an interested stockholder at or prior to the Effective
Time (as defined in that certain Agreement and Plan of Merger
dated as of April 24, 1996 between Sterling Chemicals, Inc., a
Delaware corporation, and STX Acquisition Corp., a Delaware
corporation, as amended) as the result of a transaction which
was approved by the Board of Directors prior to the time that
such stockholder became an interested stockholder.
ARTICLE VIII
Amendment of Certificate of Incorporation
The Corporation reserves the right to amend, alter, change
or repeal any provisions contained in this Certificate of
Incorporation or a Preferred Stock Designation, in the manner
now or hereafter prescribed by applicable law, and all rights,
preferences and privileges conferred upon stockholders,
directors or any other persons by and pursuant to this
Certificate of Incorporation are granted subject to this
reservation. Notwithstanding the foregoing or any other
provision of this Certificate of Incorporation or any
provision of law that might otherwise permit a lesser or no
vote, the provisions of this Article VIII and of Articles III,
IV and V may not be repealed or amended in any respect, and no
provision inconsistent with any such provision or imposing
cumulative voting in the election of directors may be added
to this Certificate of Incorporation, unless such action is
approved by the affirmative vote of the holders of not less
than 66-2/3% in voting power of all outstanding shares of
capital stock of the Corporation entitled to vote generally
at an election of directors, voting together as a single class;
provided, however, that any amendment or repeal of Section 3.08
or Article VI of this Certificate of Incorporation shall not
adversely affect any right or protection existing hereunder in
respect of any act or omission occurring prior to such
amendment or repeal and, provided further, that no Preferred
Stock Designation shall be amended after the issuance of any
shares of the series of Preferred Stock created thereby, except
in accordance with the terms of such Preferred Stock Designation
and the requirements of applicable law.
ARTICLE IX
Voting Requirements Not Exclusive
The voting requirements contained in this Certificate of
Incorporation shall be in addition to the voting requirements
imposed by law or by the Preferred Stock Designation creating
any series of Preferred Stock.
