Exhibit 10.2
STOCKHOLDER’S
AGREEMENT
This STOCKHOLDER’S AGREEMENT
(this “ Agreement ”) is made as of May 28,
2009, by and among Westway Group, Inc., formerly known as Shermen
WSC Acquisition Corp., a Delaware corporation (the “
Company ”), and Westway Holdings Corporation, a
Delaware corporation (“ Holdings ”).
RECITALS
A. The Company, Terminal Merger Sub
LLC, a Delaware limited liability company, Feed Merger Sub LLC, a
Delaware limited liability company, ED&F Man Holdings Limited,
a company limited by shares organized under the laws of England and
Wales, Holdings, Westway Terminal Company Inc., a Delaware
corporation, and Westway Feed Products, Inc., a Delaware
corporation, have entered into that certain Transaction Agreement,
dated as of November 25, 2008, as amended and restated as of
May 1, 2009 (as so amended and restated, the “
Transaction Agreement ”).
B. Upon the consummation of the
closing under, and pursuant to, the Transaction Agreement, Holdings
will acquire shares of common stock, par value $0.0001 per share,
of the Company (“ Common Stock ”) and shares of
Series A Convertible Preferred Stock, par value $0.0001, of the
Company (“ Series A Shares ”).
C. The Company and Holdings desire
to enter into this Agreement to set forth certain rights and
obligations relating to the ownership of the shares of Common Stock
and the Series A Shares held by Holdings and its
Affiliates.
D. This Agreement is the agreement
referred to as the Stockholder’s Agreement in, and its
execution by the parties hereto is a condition to the consummation
of the closing under, the Transaction Agreement.
Accordingly, in consideration of the
foregoing, the parties agree as follows:
ARTICLE 1
CERTAIN
DEFINITIONS
Section 1.1 Certain
Definitions . The following capitalized terms have the meanings
specified below:
“ Affiliate ”
means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control
with, such other Person at any time during the period for which the
determination of affiliation is being made; provided ,
however , that for purposes of this Agreement, the Company,
on the one hand, and Holdings, on the other hand, will not be
considered Affiliates of one another. For purposes of this
definition, the term “control” (including the
correlative meanings of the terms “controlled by” and
“under common control with”), as used with respect to
any
Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of
management policies of such Person, whether through the ownership
of voting securities or by contract or otherwise.
“ Agreement ” has
the meaning set forth in the Preamble.
“ Board ” means
the Company’s board of directors.
“ Business ” has
the meaning set forth in the Transaction Agreement.
“ Business Day ”
has the meaning set forth in the Transaction Agreement.
“ Common Stock ”
has the meaning set forth in the Recitals.
“ Company ” has
the meaning set forth in the Preamble.
“ Employee Trust
” has the meaning set forth in the Transaction
Agreement.
“ Equity Securities
” means any equity securities or rights convertible into or
exchangeable for such equity securities.
“ Fiscal Year ”
has the meaning set forth in the Transaction Agreement.
“ GAAP ” has the
meaning set forth in the Transaction Agreement.
“ Holdings ” has
the meaning set forth in the Preamble.
“ Law ” has the
meaning set forth in the Transaction Agreement.
“ Organizational
Documents ” means the articles of incorporation,
certificate of incorporation, charter, bylaws, articles of
formation, certificate of formation, regulations, operating
agreement, certificate of limited partnership, partnership
agreement, and all other similar documents, instruments or
certificates executed, adopted, or filed in connection with the
creation, formation, or organization of a Person, including any
amendments thereto.
“ Person ” has
the meaning set forth in the Transaction Agreement.
“ Series A Shares
” has the meaning set forth in the Recitals.
“ Stock Escrow
Agreement ” has the meaning set forth in the Transaction
Agreement.
“ Subsidiary ”
has the meaning set forth in the Transaction Agreement.
“ Transaction Agreement
” has the meaning set forth in the Recitals.
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Section 1.2
Interpretation .
(a) References to Articles and
Sections are to Articles and Sections of this Agreement unless
otherwise specified.
(b) “May” is to be
construed as permissive.
(c) A “month” means a
calendar month (as the case may be).
(d) A “notice” means
written notice unless otherwise stated.
(e) “Shall” is to be
construed as imperative.
(f) References to “$” or
“dollars” refer to lawful currency of the United
States.
(g) Writing includes typewriting,
printing, lithography, photography, email and other modes of
representing or reproducing words in a legible and non-transitory
form.
(h) Article and section headings
herein have been inserted for convenience of reference only are not
a part of this Agreement and are not to be used in construing this
Agreement.
(i) The terms “include”
and “including” and words of similar import are to be
construed as non-exclusive (so that, by way of example,
“including” mean “including without
limitation”).
(j) Unless the context of this
Agreement otherwise requires (i) words using a singular or
plural number also include the plural or singular number,
respectively, (ii) the terms “hereof,”
“herein,” “hereby” and any derivative
thereof or similar words refer to this entire Agreement,
(iii) the masculine gender includes the feminine and neuter
genders, (iv) any reference to a Law, agreement or a document
will be deemed to also refer to any amendment, supplement or
replacement thereof, and (v) whenever this Agreement refers to
a number of days, such number refers to calendar days unless such
reference specifies Business Days.
(k) Terms defined in this Agreement
by reference to any other agreement, document or instrument have
the meanings assigned to them in such agreement, document or
instrument whether or not such agreement, document or instrument is
then in effect.
(l) References to Articles and
Sections refer to the articles and sections of this
Agreement.
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(m) No provision of this Agreement
is to be construed in favor of or against any Person by reason of
the extent to which any such Person, its Affiliates or their
respective employees or counsel participated in the drafting
thereof.
ARTICLE 2
FINANCIAL AND OTHER REPORTING;
INFORMATION RIGHTS
Section 2.1 Reporting .
For so long as Holdings and its Affiliates (other than the Employee
Trust and any Affiliate who is a natural person) collectively
beneficially own at least 15% of the outstanding shares of Common
Stock (determined assuming that the Series A Shares owned by
Holdings and such Affiliates (including any such Series A Shares
held in escrow pursuant to the Stock Escrow Agreement) at the time
of such determination have been converted into shares of Common
Stock), the Company shall provide Holdings with sufficient
management and financial information and reports to allow Holdings
to monitor the conduct of the Business, including:
(a) the financial reports and
information listed in Schedule 2.1(a) at the times specified
in Schedule 2.1(a) ; and
(b) any other reports or statements
that Holdings may reasonably require.
Section 2.2 Accounts and
Records . The Company shall cause its accounts, records and
accounting information to be maintained in all material respects in
accordance with all applicable Laws and GAAP.
Section 2.3 Access to
Records . For so long as Holdings and its Affiliates (other
than the Employee Trust and any Affiliate who is a natural person)
collectively beneficially own at least 15% of the outstanding
shares of Common Stock (determined assuming that the Series A
Shares owned by Holdings and such Affiliates (including any such
Series A Shares held in escrow pursuant to the Stock Escrow
Agreement) at the time of such determination have been converted
into shares of Common Stock), Holdings and any Affiliate of
Holdings that is a stockholder of the Company may inspect the
books, accounts and records of the Company to the extent permitted
under applicable Law and the Company shall permit Holdings, such
Affiliates and their respective representatives to visit and
inspect any of the properties of the Company and its Subsidiaries,
including its books of account (and to make copies thereof and to
take extracts therefrom), and to discuss its affairs, finances and
accounts with its officers, all at such reasonable times and as
often as may be reasonably requested, in each case, subject to any
applicable law or regulation, attorney-client privilege, privacy
policies of the Company and the Company’s or its
Subsidiaries’ contractual obligations.
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ARTICLE 3
DECISION-MAKING
Section 3.1 Decision
Making . Except as specifically provided in the Transaction
Agreement and the Ancillary Agreements (as defined therein), in
addition to such other vote as may be required by applicable Law
and the Company’s Organizational Documents, for so long as
Holdings and its Affiliates (other than the Employee Trust and any
Affiliate who is a natural person) collectively beneficially own at
least 20% of the outstanding shares of Common Stock (determined
assuming that the Series A Shares owned by Holdings and such
Affiliates (including any such Series A Shares held in escrow
pursuant to the Stock Escrow Agreement) at the time of such
determination have been converted into shares of Common Stock), the
Company shall not take, approve or otherwise ratify any of the
following actions, and shall not permit any of its Subsidiaries to
take any such action, unless such action has first been approved in
writing by Holdings:
(a) any investment having a fair
market value of greater than $5,000,000 in any entity that engages
in, any business other than the Company’s or its
Subsidiaries’ existing lines of business and lines of
business reasonably related thereto;
(b) any transaction the definitive
agreements with respect to which contain provisions pursuant to
which the Company or any of its Subsidiaries explicitly assumes any
specific material environmental liability;
(c) any material amendment,
alteration or change to the provisions of the Company’s or
any of its Subsidiaries’ Organizational Documents, including
creating any class or series of Equity Security of the Company
ranking senior to, or on par with, the Series A Shares;
(d) any increase or decrease in the
size of the Board or the board of directors of any Subsidiary of
the Company;
(e) any amalgamation, corporate
reorganization, business combination, merger or consolidation
transaction involving, or sale of, all or substantially all of the
assets of the Company or any of its Subsidiaries;
(f) any reorganization,
reclassification, reconstruction, consolidation or subdivision of
its capital stock or the creation of any different class of
securities;
(g) a declaration of bankruptcy,
dissolution, voluntary liquidation or voluntary wind-up of the
Company or any of its Subsidiaries;
(h) any agreement that would
explicitly restrict or prohibit the authorization, declaration,
payment or setting apart for payment of any dividend to the holders
of Series A Shares, other than agreements (i) existing or to
be
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entered into on the date of this
Agreement (“ Existing Agreements
