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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 33-67854
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DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) MARCH 14, 2000
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CMI INDUSTRIES, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 57-0836097
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(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1301 GERVAIS STREET, SUITE 920, COLUMBIA, SOUTH CAROLINA 29201
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE) (803) 771-4434
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NOT APPLICABLE
(FORMER NAME, FORMER ADDRESS AND FORMAL FISCAL YEAR,
IF CHANGED SINCE LAST REPORT)
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ITEM 1. CHANGES IN CONTROL OF REGISTRANT.
(a) The following transaction resulted in a change in control of the Registrant
on March 14, 2000:
On March 14, 2000, CMI Industries, Inc ("CMI"), pursuant to that Stock
Acquisition Agreement dated February 23, 2000 between CMI and certain of its
stockholders who are affiliated with Merrill Lynch Capital Partners, Inc.
("Merrill Lynch"), purchased 994,387 shares of CMI Common Stock, $1.00 par value
per share (the "Common Stock"), held by the affiliates of Merrill Lynch Capital
Partners, Inc. (the "MLCP Investors") for a purchase price of $9.00 per share or
an aggregate amount of $8,949,483 (the "Redemption"). The consideration to be
paid to the MLCP Investors will be funded through CMI's current credit facility
with Fleet Capital Corporation, successor to BankBoston, N.A., and certain other
lenders. As a result of the Redemption, the MLCP Investors which previously
owned more than 62% of the outstanding Common Stock of CMI no longer own any
stock of CMI. Rather, members of management and other stockholders with
historical ties to CMI will own all of the outstanding shares of CMI Common
Stock. Following the Redemption, current employees of CMI (or their affiliates)
own approximately 36.7% of outstanding Common Stock (or 51.1% on a fully diluted
basis) and former members of management (or their affiliates) own approximately
63.3% (or 48.9% on a fully diluted basis).
In connection with the Redemption, the Stockholders Agreement between
CMI and the CMI Stockholders was amended (the "Amendment"). The Amendment
confirms that the Redemption is exempt from the rights of first refusal and
right to participate in certain sales granted in the Stockholders Agreement.
Further, the Stockholders Agreement provided that the provisions relating to
management agreements, corporate governance, transfers of Common Stock, rights
of first refusal and tag along rights would terminate in the event that the MLCP
Investors sold 60% or more of the outstanding shares of Common Stock of CMI
owned by all MLCP Investors. The Amendment provides that provisions relating to
transfer of Common Stock, rights of first refusal, and tag along rights will
remain in effect following the Redemption, and the provisions relating to
certain management agreements and corporate governance matters will terminate
upon consummation of the Redemption.
There are no special arrangements for the election of directors of CMI,
however, the CMI directors previously designated by Merrill Lynch will remain on
the Board of Directors until the next annual meeting although they will no
longer be considered designees of Merrill Lynch.
The Redemption described above resulted in a change in control for
purposes of Item 1 of Form 8-K. The Redemption did not result in a "Change of
Control" as defined in the indenture dated as of October 23, 1993 by and between
CMI and Chemical Bank, Trustee.
The Stock Acquisition Agreement and the Amendment are incorporated
herein by reference.
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(b) To the knowledge of the management of CMI, no change in control of CMI will
occur at a subsequent date due to the transaction described above.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
(a) and (b) Not Applicable.
(c) Exhibits.
2.1 Stock Acquisition Agreement between CMI Industries,
Inc. and certain of its stockholders who are affiliated with Merrill Lynch
Capital Partners, Inc, dated February 23, 2000.
4.1 Amendment No. 3 to Stockholders Agreement, dated as
of March 14, 2000 among CMI Industries, Inc. and its Stockholders.
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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: March 15, 2000 By: /s/ James A. Ovenden
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James A. Ovenden
Executive Vice President and
Chief Financial Officer
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EXHIBIT 2.1
STOCK ACQUISITION AGREEMENT
THIS IS AN ACQUISITION AGREEMENT (the "Agreement") dated as of February
23, 2000 with respect to shares of the $1.00 par value common capital stock (the
"Common Stock") of CMI Industries, Inc., a Delaware corporation (the "Company"),
by and among the entities designated on Schedule 1 hereto (individually a
"Stockholder" and collectively the "Stockholders") and the Company, and by which
said parties, in consideration of the mutual promises set forth below (the
mutuality and sufficiency of which are hereby acknowledged), hereby agree as
follows:
ARTICLE 1
PURCHASE AND SALE OF THE SHARES
At the Closing contemplated by Article 2 hereof, which shall occur on
the Closing Date (which terms are defined in section 2.01 hereof), and subject
to and on the terms and conditions of this Agreement: (a) each Stockholder shall
sell and deliver to the Company, and the Company shall purchase and accept
delivery of, the number of shares of the Common Stock set forth beside such
Stockholder's name on Schedule 1 hereto for a purchase price of $9.00 per share
payable in immediately available funds at the Closing; and (b) each party shall
also take the other actions that Article 2 hereof contemplates each such party
will take.
ARTICLE 2
THE CLOSING
2.01 Place, Time and Date of Closing. The payments and deliveries
contemplated by this Article 2 shall be made at the offices of Sutherland Asbill
& Brennan LLP, 999 Peachtree Street, NE, Atlanta, Georgia 30309, either (i) at
10:00 a.m., local time, on March 14, 2000, or (ii) at such other place, time and
date as the Company and the Stockholders shall agree. The date on which the last
of such payments and deliveries occurs is the "Closing Date," and such payments
and deliveries constitute the "Closing." The Closing shall not be deemed to have
occurred unless and until all of the conditions set forth in this Agreement have
been satisfied (or appropriately waived) and all of the actions set forth in
sections 2.04 and 2.05 of this Agreement have been taken (or appropriately
waived). Failure to close the transactions contemplated hereby on the date
specified in clause (i) of the first sentence of this section 2.01 shall not in
and of itself constitute a reason for a party to terminate this Agreement,
termination being governed by Article 5 hereof.
2.02 Conditions to Obligations of the Stockholders. All of the
obligations of the Stockholders to make the deliveries contemplated by section
2.04 of this Agreement are subject to the fulfillment prior to or at the Closing
of each of the following conditions, unless waived by the Stockholders:
(a) Bringdown. Each of the representations and warranties of the
Company contained in this Agreement, or in any certificates, agreements,
instruments or other documents
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delivered by the Company or its officers pursuant to this Agreement, shall be
true in all material respects as of the date when made, and shall be true in all
material respects at and as of the Closing; and the Company shall have performed
and complied with each of the covenants and agreements required by this
Agreement to be performed or complied with by it prior to or at the Closing.
(b) Litigation. No actions, suits or proceedings shall be pending
or, to the knowledge of the Stockholders, threatened against or affecting the
Stockholders or the Company or any of its subsidiaries or any property or assets
of the Company that challenge (or seek to obtain substantial damages in respect
of) this Agreement or the transactions contemplated thereby.
(c) Consents or Requirements. The Stockholders and the Company
shall have obtained necessary consents or agreements from all parties other than
the Stockholders or the Company to the transactions contemplated by this
Agreement and the documents contemplated hereby under all material agreements to
which a Stockholder or the Company, as the case may be, is a party, including
without limitation the valid and unequivocal consent of the creditors as
required under the Amended and Restated Loan and Security Agreement (the "Bank
Agreement") dated as of May 28, 1999 by and among the Company, the lenders named
therein and BancBoston, NA, as agent.
(d) Stockholder Approval.
(i) The holders of not less than 66-2/3% of the outstanding
shares of Common Stock shall have duly approved the transactions
contemplated hereby in accordance with the Company's certificate of
incorporation and bylaws, applicable corporate law and section 3.1(b)
of the Amended and Restated Stockholders Agreement dated as of February
14, 1992 among the Company and its stockholders, as amended (the
"Stockholders Agreement"); and
(ii) The holders of a majority of the shares held by the
stockholders of CMI Common Stock other than the Stockholders shall have
duly approved the transactions contemplated hereby.
(e) Amendment to Stockholders Agreement. The holders of not
less than 75% of the outstanding shares of Common Stock shall have entered into
an amendment to Stockholders Agreement confirming that the transactions
contemplated hereby are exempt from Articles 4 and 5 thereof.
(f) Certain Advice and Subsequent Board Action. The Board of
Directors of the Company shall have received the opinion referred to in section
2.03(e) hereof.
(g) Successors. At least 2/3's of the members of the Board of
Directors of the Company now in office shall have duly approved the successors
to the MLCP Directors (as defined
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in the Stockholders Agreement) should they tender their resignations in
connection with the consummation of the transactions contemplated hereby.
(h) Limited Obligation. The Company shall have made, or caused to
be made, the deliveries required by section 2.05 hereof to the Stockholders.
2.03 Conditions to Obligations of the Company. All of the obligations
of the Company to make the deliveries and payments contemplated by section 2.05
of this Agreement are subject to the fulfillment prior to or at the Closing of
each of the following conditions, unless waived by the Company:
(a) Bringdown. Each of the representations and warranties of each
Stockholder contained in this Agreement, or in any certificates, agreements,
instruments or other documents executed and delivered by, or on behalf of, the
Stockholders pursuant to this Agreement shall be true in all material respects
as of the date when made and shall be true in all material respects at and as of
the Closing; and each Stockholder shall have performed and complied with each of
the covenants and agreements required by this Agreement to be performed or
complied with by it prior to or at the Closing.
(b) Litigation. No actions, suits or proceedings shall be pending
or, to the knowledge of the Company, threatened against or affecting the
Stockholders, the Company or any of its subsidiaries or any property or assets
of the Company that challenge (or seek to obtain substantial damages in respect
of) this Agreement or the transactions contemplated hereby.
(c) Consents or Requirements. The Stockholders and the Company
shall have obtained necessary consents or agreements from all parties other than
the Stockholders or the Company to the transactions contemplated by this
Agreement and the documents contemplated hereby under all material agreements to
which a Stockholder or the Company, as the case may be, is a party, including
without limitation the valid and unequivocal consent of the creditors as
required under the Bank Agreement.
(d) Stockholder Approval.
(i) The holders of not less than 66 2/3% of the outstanding
shares of Common Stock shall have duly approved the transactions
contemplated hereby in accordance with the Company's certificate of
incorporation and bylaws, applicable corporate law and section 3.1(b)
of the Stockholders Agreement; and
(ii) The holders of a majority of the shares held by the
stockholders of CMI Common Stock other than the Stockholders shall have
duly approved the transactions contemplated hereby.
(e) Certain Advice and Subsequent Board Action. The Board of
Directors of the Company shall have received an opinion, in form and substance
reasonably satisfactory to the
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Company, from a nationally recognized investment banking firm to the effect that
the transactions contemplated hereby are fair to the Company from a financial
point of view.
(f) Amendment to Stockholders Agreement. The holders of not less
than 75% of the outstanding shares of Common Stock shall have entered into an
amendment to Stockholders Agreement confirming that the transactions
contemplated hereby are exempt from Articles 4 and 5 thereof.
(g) Successors. At least 2/3's of the members of the Board of
Directors of the Company now in office shall have duly approved the successors
to the MLCP Directors (as defined in the Stockholders Agreement) should they
tender their resignations in connection with the consummation of the
transactions contemplated hereby.
(h) Limited Obligation. Each Stockholder shall have made, or
caused to be made, the deliveries required by section 2.04 hereof to the
Company.
2.04 Deliveries by the Stockholders. Each Stockholder shall severally
(and not jointly) deliver, or cause to be delivered, to the Company at or prior
to the Closing the following, each of which shall be in form and substance
reasonably satisfactory to the Company:
(a) Share certificates representing the shares of Common Stock
owned by such Stockholder, together with separate stock transfer powers, duly
endorsed by such Stockholder, for transfer of such shares to be Company.
(b) A certificate dated the Closing Date and executed by an
officer or other authorized representative of each Stockholder certifying (i)
that the representations and warranties of such Stockholder contained herein or
given pursuant hereto are true and correct in all material respects on and as of
the Closing Date with the same effect as though such representations and
warranties had been made on and as of such date, and (ii) that each of the
agreements and covenants of such Stockholder to be performed or complied with on
or before the Closing Date pursuant to the terms of this Agreement have been
duly performed or complied with in all material respects.
(c) A certificate dated the Closing Date and executed by an
officer or other authorized representative of each Stockholder certifying and
setting forth (i) the action taken to authorize (or provisions of articles or
certificates of incorporation, by laws, partnership agreements, trusts or
applicable law authorizing) such Stockholder's execution and delivery of this
Agreement and any other certificates, agreements or other instruments and
documents executed and delivered by such Stockholder pursuant to this Agreement
and the consummation of the transactions contemplated by them and any other
compliance with or performance under them (or if no such action is required, a
statement as to the bases therefor), and (ii) the signature and title of the
officers or other authorized representative executing such documents.
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(d) Such other documents and certificates as the Company may
reasonably request after giving reasonable notice thereof.
2.05 Deliveries by the Company. The Company shall deliver, or cause to
be delivered, to the Stockholders at or prior to the Closing the following, each
of which shall be in form and substance reasonably satisfactory to the
Stockholders:
(a) The purchase price for the shares of Common Stock to be
purchased and sold pursuant hereto by wire transfer in immediately available
funds to one or more accounts designated by the Shareholders by written notice
received by the Company not less than three days prior to the Closing Date.
(b) A certificate dated the Closing Date and executed by an
officer of the Company certifying (i) that the representations and warranties of
the Company contained in this Agreement or given pursuant hereto are true and
correct in all material respects on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
such date, and (ii) that each of the covenants and agreements to be performed or
complied with by the Company prior to or at the Closing have been performed and
complied with in all material respects.
(c) A certificate dated the Closing Date and executed by an
officer of the Company certifying and setting forth (i) the action taken to
authorize the Company's execution and delivery of this Agreement and any other
certifications, agreements or other instruments and documents executed and
delivered by the Company pursuant to this Agreement and the consummation of the
transactions contemplated by them and any other compliance with or performance
under them, and (ii) the signature and title of the officers executing such
documents.
(d) The opinion of Sutherland Asbill & Brennan LLP, counsel for
the Company, as to due authorization of, execution and delivery of this
Agreement and the other documents and instruments to be executed and delivered
by the Company to the Stockholders pursuant hereto, and the ability of the
Company to purchase the shares of Common Stock to be purchased from the
Stockholders in compliance with the limitations set forth in section 1010 of the
Indenture dated as of October 28, 1993 from the Company to Chemical Bank,
Trustee (the "Indenture").
(e) Such other documents and certificates as the Special
Stockholder Agent may reasonably request after giving reasonable notice thereof.
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ARTICLE 3
THE STOCKHOLDERS' REPRESENTATIONS AND WARRANTIES
Each Stockholder hereby severally and not jointly represents and
warrants to the Company as follows:
3.01 Ownership of Shares. Such Stockholder owns of record and
beneficially the number of shares of Common Stock set forth beside such
Stockholder's name on Schedule 1 hereto; such shares are such Stockholder's only
shares of the capital stock of, or other beneficial interest in or claim upon,
the Company; and such Stockholder has good and valid title to such shares, free
and clear of all liens, claims, pledges, encumbrances, options, rights of first
refusal or other transfer restrictions or adverse claims and charges of any
nature whatsoever, except for those contained in the Stockholders Agreement.
3.02 Authorization. With respect to this Agreement, the stock transfer
powers, and any other agreements, instruments and documents executed and
delivered by such Stockholder pursuant to this Agreement (this Agreement and
such other agreements, instruments and documents, collectively the "Stockholder
Delivered Agreements"): (a) such Stockholder has the right and power to enter
into and deliver the Stockholder Delivered Agreements and to consummate the
transactions contemplated by, and otherwise to comply with and perform under,
them; (b) the execution, delivery and performance by such Stockholder of the
Stockholder Delivered Documents, including the transfer of its shares of Common
Stock to the Company pursuant hereto, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
action on the part of such Stockholder in compliance with governing or
applicable agreements, instruments or other documents (including without
limitation articles or certificates of incorporation, bylaws and partnership
agreements) and applicable law; and (c) the Stockholder Delivered Agreements
will, when delivered, constitute valid and binding agreements of such
Stockholder that are enforceable against such Stockholder in accordance with
their terms, except as enforceability may be subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and to the effect of general principles of
equity.
3.03 Absence of Violations or Conflicts. Subject to compliance with
Article 5 of the Stockholders Agreement, the execution and delivery by such
Stockholder of its Stockholder Delivered Agreements, and the consummation by
such Stockholder of the transactions contemplated by, or other compliance with
or performance under, them do not and will not with the passing of time or
giving of notice constitute a violation of or a default or require any payment
under, permit a termination of, or result in the creation or imposition of any
security interest, lien or other encumbrance or adverse claim or interest upon
any of such Stockholder's shares of Common Stock under, (i) any contract,
agreement, commitment, undertaking or understanding (including without
limitation rights of first refusal or other transfer restrictions) to which such
Stockholder is a party or to which its shares of Common Stock are subject or
bound, other than (A) those the breach or violation of which would not result in
the creation or imposition of any security interest, lien or other
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encumbrance or adverse claim or interest upon any of such Stockholder's shares
of Common Stock or would not otherwise adversely effect the ability of such
Stockholder to consummate the transactions contemplated hereby, and (B) those
the breach or violation of which are waived or cured at or prior to the Closing,
(ii) any judgment, decree or order of any court or governmental agency to which
such Stockholder or its shares of Common Stock are subject or bound, or (iii)
any law applicable to such Stockholder or its shares of Common Stock.
3.04 No Consents of Governmental Agencies Required. No consent,
approval, order or authorization of, or registration, declaration of filing
with, any governmental authority on the part of such Stockholder is required in
connection with the execution or delivery of its Stockholder Delivered
Agreements or the consummation of the transactions contemplated by, or other
compliance with or performance under, the Stockholder Delivered Agreements by
such Stockholder. Without limiting the foregoing, such Stockholder is not an
"entity" included within any "person" which "holds" 50% or more of the
outstanding shares of Common Stock (as those terms are defined in the Premerger
Notification Rules promulgated under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended).
ARTICLE 4
THE COMPANY'S REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to the Stockholders as
follows:
4.01 Existence. The Company is a corporation duly incorporated,
organized and validly existing in good standing under the laws of the State of
Delaware.
4.02 Authorization. With respect to this Agreement and any other
agreements, instruments and documents to be executed and delivered by the
Company pursuant to this Agreement (this Agreement and such other agreements,
instruments and documents, collectively the "Company Delivered Agreements"): (a)
the Company has the corporate power to enter into the Company Delivered
Agreements and to consummate the transactions contemplated by, and otherwise to
comply with and to perform under, them; (b) subject to the approval of the
Company's stockholders in accordance with the terms of the Stockholders
Agreement, the Company's certificate of incorporation, bylaws and applicable
law, the execution and delivery by the Company of the Company Delivered
Agreements and the consummation by the Company of the transactions contemplated
by, and other compliance with or performance under, them have been duly
authorized by all necessary corporate action on the part of the Company in
compliance with the Stockholders Agreement, the Company's certificate of
incorporation, bylaws and applicable law; and (c) the Company Delivered
Agreements will, when delivered, constitute valid and binding agreements of the
Company that are enforceable against it in accordance with their terms, except
as enforceability may be subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and to the effect of general principles of equity.
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4.03 Absence of Violations or Conflicts. Subject to compliance with
Article 5 of the Stockholders Agreement, the execution and delivery by the
Company of the Company Delivered Agreements, and the consummation by the Company
of the transactions contemplated by, or other compliance with or performance
under, them do not and will not with the passing of time or giving of notice
constitute a violation of or a default or require any payment under, permit a
termination of, or result in the creation or imposition of any security
interest, lien or other encumbrance or adverse claim or interest upon the
Company's properties and assets under, (i) any contract, agreement, commitment,
undertaking or understanding to which the Company is a party or to which the
Company's properties and assets are subject or bound, other than (A) those the
breach or violation of which would not have a materially adverse effect on the
business, results of operation, properties, assets, prospects, or condition
(financial or otherwise) of the Company taken as a whole, and (B) those the
breach or violation of which are waived or cured at or prior to the Closing,
(ii) any judgment, decree or order of any court or governmental agency to which
the Company or the Company's properties and assets are subject or bound, or
(iii) any law applicable to the Company or to which its properties or assets are
bound.
4.04 No Consents of Governmental Agencies Required. No consent,
approval, order or authorization of, or registration, declaration of filing
with, any governmental authority on the part of the Company is required in
connection with the execution or delivery of the Company Delivered Agreements or
the consummation of the transactions contemplated by, or other compliance with
or performance under the Company Delivered Agreements by the Company.
4.05 Certain Representations Regarding the Indenture. No Permitted
Payments (as that term is defined in the Indenture) have heretofore been made in
reliance on section 1010(b)(vi) of the Indenture. No Defaults or Events of
Default (as those terms are defined in the Indenture) have occurred and are
continuing.
ARTICLE 5
TERMINATION AND ABANDONMENT
5.01 General. This Agreement may be terminated and the purchase and
sale of the shares of Common Stock abandoned at any time prior to the Closing:
(a) by mutual agreement of the Stockholders and the Company;
(b) by the Company, if the conditions set forth in section 2.03
hereof shall not have been complied with or performed in any material respect on
or before the Closing Date; or
(c) by the Stockholders, if the conditions set forth in section
2.02 hereof shall not have been complied with or performed in any material
respect on or before the Closing Date.
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5.02 Automatic Termination. In the event the transactions contemplated
hereby shall not have been consummated on or before March 31, 2000, and not due
to the fault of a party hereto, this Agreement shall terminate without any
action on the part of any party unless the Stockholders and the Company shall
have agreed upon an extension of time in which to consummate such transactions.
5.03 Specific Performance and Other Remedies. Each Stockholder, on the
one hand, and the Company, on the other hand, acknowledges that, in the event
that such Stockholder or the Company violates or fails and refuses to perform
any covenant or agreement made by him or it in this Agreement, the Company or
the Stockholders, as the case may be, may be without adequate remedy at law.
Each Stockholder, on the one hand, and the Company, on the other hand, agrees
therefore, that in the event that he or it violates or fails or refuses to
perform any covenant or agreement made by him or it in this Agreement, the
Company or the Stockholders, as the case may be, may, in addition to any
remedies at law for damages or other relief, institute and prosecute an action
in any court of competent jurisdiction to enforce specific performance of such
covenant or agreement or seek any other equitable relief. In the event that the
Company or the Stockholders, as the case may be, institutes such proceedings
prior to the termination or abandonment of this Agreement pursuant to sections
5.01 or 5.02 hereof, then notwithstanding any provision of any such sections,
this Agreement shall be terminated and abandoned thereafter only if a final
judgment or order is entered in such action or in any appeal therefrom denying
specific performance to the Company or the Stockholders, as the case may be, in
such action or dismissing or discontinuing such action without the granting of
such relief (and such judgment or order is not then subject to appeal) or such
action or an appeal therefrom is dismissed or discontinued voluntarily by the
Company or the Stockholders, as the case may be, in such action or by the
agreement of the parties thereto without the granting of such relief.
5.04 Rights and Obligations on Termination. If this Agreement is
terminated and abandoned as provided in this Article 5 the continuing liability
of the parties to this Agreement with respect to any breach of any
representation, warranty, covenant or agreement contained in this Agreement
shall not be affected by such termination or abandonment, unless this Agreement
is terminated or abandoned by agreement of the parties pursuant to section
5.01(a) hereof, or automatically pursuant to section 5.02 hereof.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.01 Survival. The representations, warranties, covenants and
agreements made by the parties in this Agreement, in the exhibits, schedules and
other attachments to this Agreement and in any agreement, certificate,
instrument or other document executed and delivered by a party pursuant to this
Agreement shall survive the Closing and the purchase of shares of Common Stock
pursuant hereto for a period of one year from the Closing Date, except that all
such representations, warranties, covenants and agreements shall survive beyond
such time period if and to the extent that
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notice of a claim thereunder is given within the time period specified above.
The parties acknowledge and agree that this Agreement, the transactions
contemplated hereby and any liabilities, claims, losses, costs, damages or
expenses (including attorneys' fees and disbursements) arising with respect
thereto are not subject to, and will not give rise to any rights under, any
indemnification agreement or undertaking heretofore given by any party hereto or
any of its affiliates to any other party hereto or any of its affiliates.
6.02 Procedures under Stockholders Agreement. The Company agrees to
deliver within five business days of the date hereof proper notice of the
transactions contemplated hereby to the stockholders of the Company in
accordance with the Stockholders Agreement and to recommend to such stockholders
that they (a) approve the transactions contemplated hereby in accordance with
the Company's certificate of incorporation and bylaws, applicable corporate law
and section 3.1(b) of the Stockholders Agreement, and (b) approve an amendment
to the Stockholders Agreement confirming that the transactions contemplated
hereby are exempt from Articles 4 and 5 thereof. The Company agrees to use
reasonable efforts to obtain such approvals at the earliest practicable time.
6.03 Continuity of Board. The Company agrees to use reasonable best
efforts to assure that a majority of the Board of Directors of the Company
during the two-year period following the date hereof shall be comprised of
either individuals currently serving on the Board of Directors of the Company or
new directors whose election by the Board of Directors of the Company or whose
nomination for election by the stockholders is approved by a vote of 66 2/3's of
the directors still in office who were either directors on the date hereof or
whose election or nomination for election was previously so approved, or a
combination thereof. The Company has been advised by each of the current members
of the Board of Directors that they intend to remain on the Board of Directors
after the Closing.
6.04 Further Assurances; Cooperation. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use its best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable law to
consummate and make effective, as soon as reasonably practicable, the
transactions contemplated by this Agreement. Upon the execution of this
Agreement and thereafter, each party shall do all such things as may be
reasonably requested by another party hereto in order to more effectively
consummate or to document the transactions contemplated by this Agreement.
6.05 Expenses. Each Stockholder shall pay its own expenses and costs,
and the Company shall pay its own expenses and costs, in connection with this
Agreement and the other documents and transactions contemplated by this
Agreement. Notwithstanding the foregoing, sales, transfer and other similar
taxes arising out of or in connection with the consummation of the transactions
contemplated by this Agreement shall be paid by the Stockholders.
6.06 Notices. All notices, communications and deliveries under this
Agreement (a) shall be made in writing signed by the party making the same to
the address; (b) shall specify the section of this Agreement pursuant to which
it is given; (c) shall be deemed given if delivered in person, on
10
<PAGE> 11
the date delivered, if sent by telecopier, on the date of telephonic
confirmation of receipt, or if mailed first class mail (with postage prepaid),
on the date mailed; and (d) shall be deemed received if delivered in person, on
the date of personal delivery, if telecopied, on the date of telephonic
confirmation of receipt, or if so mailed, on the third business day after having
been so mailed. The addresses are as follows:
If to the Company:
CMI Industries, Inc.
1301 Gervais Street
Columbia, South Carolina 29201
Telecopy number: 803.771.0463
Confirmation number: 803.771.4434
If to a Stockholder, addressed to such Stockholder in care of:
Merrill Lynch Office of General Counsel
World Financial Center, North Tower
250 Vesey Street
New York, New York 10281-1312
Telecopy number: 212.449.3207
Confirmation number: 212.449.7948
Such notice shall be given at such other address as a party to this Agreement
may furnish to the other party to this Agreement pursuant to the foregoing.
6.07 Computation of Time. Whenever the last day for the exercise of any
privilege or the discharge of any duty under this Agreement shall fall upon
Saturday, Sunday or any public or legal holiday, the party having such privilege
or duty shall have until 5:00 pm on the next succeeding regular business day to
exercise such privilege or to discharge such duty.
6.08 Successors in Interest. This Agreement shall be binding upon the
parties to this Agreement and their respective legal representatives, heirs,
legatees, devisees, and successors and assigns and shall inure to the benefit of
the parties hereto and their respective legal representatives and successors and
assigns (and to or for the benefit of no other person or entity).
6.09 Severability. In the event that any court of competent
jurisdiction shall determine that any provision of this Agreement is invalid,
such determination shall not affect the validity of any other provision of this
Agreement, which shall remain in full force and effect and which shall be
construed as valid under applicable law.
11
<PAGE> 12
6.10 Captions; Etc. Titles and captions of or in this Agreement and
the cover sheet and table of contents of this Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit, extend or
describe the scope of this Agreement or the intent of any of its provisions.
Whenever the context so requires, the singular number shall include the plural
and the plural shall include the singular, and the gender of any pronoun shall
include the other genders.
6.11 Controlling Law; Integration; Amendment; Waiver. This Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of New York. This Agreement (which includes its exhibits and
schedules) and the other agreements, documents and instruments to be delivered
pursuant to this Agreement supersede all prior negotiations, agreements and
understandings between the parties with respect to the subject matter thereof.
This Agreement shall not be deemed a waiver by the Stockholders of any of their
rights under the Stockholders Agreement (all of which will expire as of the
Closing). The failure of any party to this Agreement at any time or times to
require performance of any provision of this Agreement shall in no manner affect
the right to enforce the same; and no waiver by any party to this Agreement of
any provision (or of a breach of any provision) of this Agreement, whether by
conduct or otherwise, in any one or more instances shall be deemed or construed
either as a further or continuing waiver of any such provision or breach or as a
waiver of any other provision (or of a breach of any other provision) of this
Agreement.
6.12 Counterparts. This Agreement may be executed in two or more
copies, each of which shall be deemed an original, and it shall not be necessary
in making proof of this Agreement or its terms to produce or account for more
than one of such copies.
* * *
12
<PAGE> 13
DULY EXECUTED and delivered by the parties this Agreement as of the day
and date first above written.
THE COMPANY:
CMI INDUSTRIES, INC.
By:
--------------------------------------------
Title:
-----------------------------------------
THE STOCKHOLDERS:
MERRILL LYNCH CAPITAL APPRECIATION
PARTNERSHIP NO. VII, L.P.
By: Merrill Lynch LBO Partners
No. II, L.P., as General Partner
By: Merrill Lynch Capital Partners, Inc.,
as General Partner of Merrill Lynch
LBO Partners No. II, L.P.
By:
--------------------------------------------
Title:
-----------------------------------------
13
<PAGE> 14
ML OFFSHORE LBO PARTNERSHIP NO. VII
By: Merrill Lynch LBO Partners No. II,
L.P., as Investment General Partner
By: Merrill Lynch Capital Partners, Inc.,
as General Partner of Merrill Lynch
LBO Partners No. II, L.P.
By:
--------------------------------------------
Title:
-----------------------------------------
ML EMPLOYEES LBO PARTNERSHIP NO. I, L.P.
By: ML Employees LBO Managers, Inc. as
General Partner
By:
--------------------------------------------
Title:
-----------------------------------------
ML IBK POSITIONS, INC.
By:
--------------------------------------------
Title:
-----------------------------------------
MERCHANT BANKING L.P. NO. I
By: Merrill Lynch MBP Inc. as General Partner
By:
--------------------------------------------
Title:
-----------------------------------------
14
<PAGE> 15
MERRILL LYNCH KECALP L.P. 1986
By: KECALP Inc. as General Partner
By:
--------------------------------------------
Title:
-----------------------------------------
MERRILL LYNCH CAPITAL APPRECIATION
PARTNERSHIP NO. B-XVI, LP
By: Merrill Lynch LBO Partners No. B-III
as General Partner
By: Merrill Lynch Capital Partners, Inc., as
General Partner of Merrill Lynch LBO
Partners No. B-III
By:
--------------------------------------------
Title:
-----------------------------------------
ML OFFSHORE LBO PARTNERSHIP NO. B-XVI
By: Merrill Lynch LBO Partners No. B-III as
General Partner
By: Merrill Lynch Capital Partners, Inc., as
General Partner of Merrill Lynch LBO
Partners No. B-III
By:
--------------------------------------------
Title:
-----------------------------------------
15
<PAGE> 16
MLCP ASSOCIATES L.P. NO. II
By: Merrill Lynch Capital Partners, Inc.
as General Partner
By:
--------------------------------------------
Title:
-----------------------------------------
MERRILL LYNCH KECALP L.P. 1989
By: KECALP INC. as General Partner
By:
--------------------------------------------
Title:
-----------------------------------------
MERRILL LYNCH KECALP L.P. 1991
By: KECALP INC. as General Partner
By:
--------------------------------------------
Title:
-----------------------------------------
* * *
16
<PAGE> 17
SCHEDULE I
STOCKHOLDERS AND NUMBER OF
SHARES OF COMMON STOCK OWNED
<TABLE>
<CAPTION>
Number
Name of Shares
---- ---------
<S> <C>
Merrill Lynch Capital Appreciation 398,900
Partnership No. VII, L.P.
ML Offshore LBO Partnership No. VII 10,142
ML Employees LBO Partnership No. I, L.P. 9,916
ML IBK Positions, Inc. 99,401
Merchant Banking L.P. No. I 8,902
Merrill Lynch KECALP L.P. 1986 2,857
Merrill Lynch Capital Appreciation Partnership 270,399
No. B-XVI, LP
ML Offshore LBO Partnership No. B-XVI 162,458
MLCP Associates L.P. No. II 4,350
Merrill Lynch KECALP L.P. 1989 13,531
Merrill Lynch KECALP L.P. 1991 13,531
-------
TOTAL 994,387
=======
</TABLE>
17
<PAGE> 1
EXHIBIT 4.1
Amendment No. 3 to Stockholders Agreement
THIS AGREEMENT is made and entered into as of March ___, 2000
by and among the persons and entities designated on Schedule 1 hereto
(individually a "Stockholder" and collectively the "Stockholders") and CMI
Industries, Inc., a Delaware corporation ("CMI").
Background Statement
A. CMI and the holders of the $1.00 par value common
stock of CMI ("CMI Common Stock") are parties to the Stockholders Agreement
dated February 14, 1992, as amended by the Amendment No. 1 to Stockholders
Agreement dated as of December 31, 1993 and Amendment No. 2 to the Stockholders
Agreement dated as of March 1, 1996 (as so amended, the "Original Stockholders
Agreement"). Section 9.2(a) of the Original Stockholders Agreement provides
that it may be amended by the holders of three-fourths or more of the
outstanding shares of CMI Common Stock, and the Stockholders hold in the
aggregate not less than three-fourths of the outstanding shares of CMI Common
Stock.
B. CMI and certain of the Stockholders are parties to a
Stock Acquisition Agreement (the "Stock Acquisition Agreement") dated as of
February 23, 2000, which provides, in part, for the sale by such Stockholders
to CMI of 994,387 shares of CMI Common Stock. The parties hereto desire to
enter into this agreement in order to amend the Original Stockholders Agreement
in light of the transactions contemplated by the Stock Acquisition Agreement.
The Original Stockholders Agreement, as amended hereby, shall be referred to
herein as the "Stockholders Agreement," and the terms defined therein and not
otherwise defined herein shall be used herein as therein defined.
Agreement
In consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Effective Date. This Amendment No. 3 to Stockholders
Agreement shall become effective contemporaneously with the occurrence of the
Closing on the Closing Date (as those terms are defined in the Stock
Acquisition Agreement) and only if such Closing occurs. Notwithstanding the
foregoing, to the extent Article 5 of the Original Stockholders Agreement would
require any party to the Stock Acquisition Agreement to give one or more
notices regarding the transactions contemplated by the Stock Acquisition
Agreement, section 2(a) hereof shall be deemed to have become effective
immediately prior to the execution and delivery of the Stock Acquisition
Agreement. In the event the Closing under the Stock Acquisition Agreement does
not occur for any reason whatsoever, this Amendment No. 3 to Stockholders
Agreement shall be null, void and of no force or effect.
1
<PAGE> 2
2. Amendments to Original Stockholders Agreement.
CMI and the Stockholders hereby amend the Original Stockholders Agreement as
follows:
(a) Section 4.2 of the Original Stockholders Agreement is
amended to include the following subsection (xi), which shall appear
immediately following subsection (x) of Section 4.2:
"(xi) Pursuant to the Stock Acquisition
Agreement between CMI and the MLCP Investors dated
as of February 23, 2000."
(b) Subsection (a) of Section 8.1 of the Original
Stockholders Agreement is amended to delete clause (ii)(B) in its entirety and
to add a new subsection (c) immediately following subsection (b) of Section
8.1:
"(ii) The provisions of Articles 2 and 3
shall terminate upon the sale, in one or more
transactions (whether or not related), by one or
more of the MLCP Investors of not less than an
aggregate of 60% of the outstanding shares of CMI
Common Stock held by all of the MLCP Investors
immediately after such Effective Date,".
3. Reference to and Effect on the Stockholders
Agreement. (a) Upon the effectiveness hereof, each reference in the Original
Stockholders Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import referring to the Original Stockholders Agreement, and each
reference in the other documents referred to therein to "the Stockholders
Agreement," "thereunder," "thereof," "therein," or words of like import
referring to the Original Stockholders Agreement, shall mean and be a reference
to the Stockholders Agreement.
(b) The Original Stockholders Agreement, as amended prior
to the date hereof and as amended hereby, shall remain in full force and effect
and is hereby ratified and confirmed.
4. Certain Representations. Each of the Stockholders
hereby represents and warrants to the other Stockholders and to CMI that such
Stockholder holds the number of shares of CMI Common Stock set forth beside its
name on Schedule 1 hereto.
5. Miscellaneous. This agreement shall be governed by
and construed in accordance with the laws of the State of Delaware. This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their successors and assigns, and, in accordance with Section 9.2(a) of the
Stockholders Agreement, all other parties to the Stockholders Agreement, their
successors and assigns. This agreement, together with the Original Stockholders
Agreement, constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof and thereof and supersedes all prior oral
and written agreements or understandings
2
<PAGE> 3
among the parties with respect thereto. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and date first above
written.
CMI INDUSTRIES, INC.
By:
------------------------------------------
Title:
---------------------------------------
MERRILL LYNCH CAPITAL APPRECIATION
PARTNERSHIP NO. VII, L.P.
By: Merrill Lynch LBO Partners No. II, L.P.,
as General Partner
By: Merrill Lynch Capital Partners, Inc.,
as General Partner of
Merrill Lynch LBO Partners
No. II, L.P.
By:
------------------------------------------
Title:
---------------------------------------
ML OFFSHORE LBO PARTNERSHIP NO. VII
By: Merrill Lynch LBO Partners No. II, L.P.,
as Investment General Partner
By: Merrill Lynch Capital Partners, Inc.,
as General Partner of
Merrill Lynch LBO Partners
No. II, L.P.
By:
------------------------------------------
Title:
---------------------------------------
3
<PAGE> 4
ML EMPLOYEES LBO PARTNERSHIP NO. I, L.P.
By: ML Employees LBO Managers, Inc.,
as General Partner
By:
-----------------------------------------
Title:
--------------------------------------
ML IBK POSITIONS, INC.
By:
-----------------------------------------
Title:
--------------------------------------
MERCHANT BANKING L.P. NO. I
By: Merrill Lynch MBP Inc.,
as General Partner
By:
-----------------------------------------
Title:
--------------------------------------
MERRILL LYNCH KECALP L.P. 1986
By: KECALP Inc.,
as General Partner
By:
-----------------------------------------
Title:
--------------------------------------
MERRILL LYNCH CAPITAL APPRECIATION
PARTNERSHIP NO. B-XVI, L.P.
By: Merrill Lynch LBO Partners No. B-III,
as General Partner
By: Merrill Lynch Capital Partners, Inc.,
as General Partner of Merrill Lynch LBO
Partners No. B-III
By:
-----------------------------------------
4
<PAGE> 5
Title:
--------------------------------------
ML OFFSHORE LBO PARTNERSHIP NO. B-XVI
By: Merrill Lynch LBO Partners No. B-III,
as General Partner
By: Merrill Lynch Capital Partners, Inc.,
as General Partner of Merrill Lynch LBO
Partners No. B-III
By:
-----------------------------------------
Title:
--------------------------------------
MLCP ASSOCIATES L.P. NO. II
By: Merrill Lynch Capital Partners, Inc.,
as General Partner
By:
-----------------------------------------
Title:
--------------------------------------
MERRILL LYNCH KECALP L.P. 1989
By: KECALP INC.,
as General Partner
By:
-----------------------------------------
Title:
--------------------------------------
MERRILL LYNCH KECALP L.P. 1991
By: KECALP INC.,
as General Partner
By:
-----------------------------------------
Title:
--------------------------------------
5
<PAGE> 6
----------------------------------------------
Michael H. deHavenon
----------------------------------------------
G. Thaddeus Williams
----------------------------------------------
Steve F. Warren
----------------------------------------------
J. R. Swetenburg
----------------------------------------------
W. James Raleigh
----------------------------------------------
Anthony J. Raffo
M.S. Bailey & Son, Bankers,
as Trustee for the C. Bailey Dixon II Trust
By:
-------------------------------------------
Title:
----------------------------------------
M.S. Bailey & Son, Bankers,
as Trustee for Julius A. Swetenburg
By:
-------------------------------------------
Title:
----------------------------------------
M.S. Bailey & Son, Bankers,
as Trustee for Ada S. Cain
6
<PAGE> 7
By:
-------------------------------------------
Title:
----------------------------------------
M.S. Bailey & Son, Bankers,
as Trustee for John Richard Swetenburg, III
By:
-------------------------------------------
Title:
----------------------------------------
----------------------------------------------
Russell G. Vance
----------------------------------------------
James D. Barton
----------------------------------------------
Joseph L. Gorga
----------------------------------------------
John T. Cavanagh
----------------------------------------------
James H. Coleman
----------------------------------------------
Thomas E. Davenport
----------------------------------------------
McArthur A. George
----------------------------------------------
Joshua T. Hamilton
7
<PAGE> 8
PALBA & CO.,
as Trustee for Joshua T. & Marquita C. Hamilton
Irrevocable Trust u/a 9-16-94
By:
----------------------------------------------
Title:
-------------------------------------------
-------------------------------------------------
William R. Hill
-------------------------------------------------
Barry L. Hooks
-------------------------------------------------
Robert E. Hooks
-------------------------------------------------
Leon J. McCullough
-------------------------------------------------
Joseph B. Nelson
-------------------------------------------------
C. Mack Parsons
-------------------------------------------------
William E. Stanton
-------------------------------------------------
H. Jerome Stuckey
-------------------------------------------------
Harry B. Sullivan
8
<PAGE> 9
-----------------------------
James A. Ovenden
The Warren Family Partnership
By:
--------------------------
Title:
-----------------------
By:
--------------------------
Title:
-----------------------
9
<PAGE> 10
SCHEDULE 1
Stockholders and Number of Shares of CMI
Common Stock Owned
<TABLE>
<CAPTION>
Name Number of
---- Shares Owned
------------
<S> <C>
Merrill Lynch Capital Appreciation Partnership No. VII, L.P. 398,900
- -------------------------------------------------------------------------------------------------------
ML Offshore LBO Partnership No. VII 10,142
- -------------------------------------------------------------------------------------------------------
ML Employees LBO Partnership No. I, L.P. 9,916
- -------------------------------------------------------------------------------------------------------
ML IBK Positions, Inc. 99,401
- -------------------------------------------------------------------------------------------------------
Merchant Banking L.P. No. I 8,902
- -------------------------------------------------------------------------------------------------------
Merrill Lynch KECALP L.P. 1986 2,857
- -------------------------------------------------------------------------------------------------------
Merrill Lynch Capital Appreciation Partnership No. B-XVI, L.P. 270,399
- -------------------------------------------------------------------------------------------------------
ML Offshore LBO Partnership No. B-XVI 162,458
- -------------------------------------------------------------------------------------------------------
MLCP Associates L.P. No. II 4,350
- -------------------------------------------------------------------------------------------------------
Merrill Lynch KECALP L.P. 1989 13,531
- -------------------------------------------------------------------------------------------------------
Merrill Lynch KECALP L.P. 1991 13,531
- -------------------------------------------------------------------------------------------------------
Michael H. deHavenon 4,081
- -------------------------------------------------------------------------------------------------------
G. Thaddeus Williams 97,000
- -------------------------------------------------------------------------------------------------------
Steve F. Warren 60,000
- -------------------------------------------------------------------------------------------------------
J. R. Swetenburg 40,002
- -------------------------------------------------------------------------------------------------------
W. James Raleigh 20,000
- -------------------------------------------------------------------------------------------------------
Anthony J. Raffo 5,000
- -------------------------------------------------------------------------------------------------------
M.S. Bailey & Son, Bankers, as Trustee for the C. Bailey Dixon, 46,700
II Trust
- -------------------------------------------------------------------------------------------------------
M.S. Bailey & Son, Bankers, as Trustee for Julius A. 26,666
Swetenburg
- -------------------------------------------------------------------------------------------------------
M.S. Bailey & Son, Bankers, as Trustee for Ada S. Cain 26,666
- -------------------------------------------------------------------------------------------------------
</TABLE>
10
<PAGE> 11
<TABLE>
<S> <C>
M.S. Bailey & Son, Bankers, as Trustee for John Richard 26,666
Swetenburg, III
- -------------------------------------------------------------------------------------------------------
Russell G. Vance 46,650
- -------------------------------------------------------------------------------------------------------
James D. Barton 5,000
- -------------------------------------------------------------------------------------------------------
Joseph L. Gorga 5,000
- -------------------------------------------------------------------------------------------------------
John T. Cavanagh 20,000
- -------------------------------------------------------------------------------------------------------
James H. Coleman 10,000
- -------------------------------------------------------------------------------------------------------
Thomas E. Davenport 10,000
- -------------------------------------------------------------------------------------------------------
McArthur A. George 6,000
- -------------------------------------------------------------------------------------------------------
Joshua T. Hamilton 16,000
- -------------------------------------------------------------------------------------------------------
Joshua T. & Marquita C. Hamilton Irrevocable Trust u/a 9-16-94 4,000
- -------------------------------------------------------------------------------------------------------
William R. Hill 5,000
- -------------------------------------------------------------------------------------------------------
Barry L. Hooks 10,000
- -------------------------------------------------------------------------------------------------------
Robert E. Hooks 6,000
- -------------------------------------------------------------------------------------------------------
Leon J. McCullough 3,000
- -------------------------------------------------------------------------------------------------------
Joseph B. Nelson 6,000
- -------------------------------------------------------------------------------------------------------
C. Mack Parsons 3,500
- -------------------------------------------------------------------------------------------------------
William E. Stanton 5,000
- -------------------------------------------------------------------------------------------------------
H. Jerome Stuckey 6,000
- -------------------------------------------------------------------------------------------------------
Harry B. Sullivan 5,000
- -------------------------------------------------------------------------------------------------------
James A. Ovenden 10,000
- -------------------------------------------------------------------------------------------------------
The Warren Family Partnership 60,000
- -------------------------------------------------------------------------------------------------------
</TABLE>
11
