Exhibit 4.2
AMENDMENT NO. 1 TO LOAN AND WARRANT AGREEMENT AND
REGISTRATION RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO LOAN AND WARRANT AGREEMENT AND REGISTRATION
RIGHTS AGREEMENT (this "Amendment") is made and entered into as of April 28,
2006, by and among Zoltek Companies, Inc., a Missouri corporation
("Zoltek"), and the lenders identified on the signature pages hereto (each,
a "Lender" and, collectively, the "Lenders").
RECITALS
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1. Zoltek and the Lenders are parties to a Loan and Warrant
Agreement, dated as of September 29, 2005 (the "September Purchase
Agreement"), pursuant to which Zoltek issued and sold to the
Lenders an aggregate of $30,000,000 of Notes and certain Warrants
(each as defined in the September Purchase Agreement), and a right
to issue up to an additional $20,000,000 of Notes and certain
Warrants. The Notes and Warrants issued under the September
Purchase Agreement are referred to in this Amendment as the
"September Notes" and "September Warrants," respectively.
Capitalized terms used and not defined in this Amendment shall
have the respective meanings set forth in the September Purchase
Agreement.
2. Zoltek and the Lenders are parties to a Loan and Warrant
Agreement, dated as of February 9, 2005 (the "February Purchase
Agreement" and together with the September Purchase Agreement, the
"Purchase Agreements"), pursuant to which Zoltek issued and sold
to the Lenders an aggregate of $20,000,000 of Notes and certain
Warrants (each as defined in the February Purchase Agreement). The
Notes and Warrants issued under the February Purchase Agreement
are referred to as the "February Notes" and "February Warrants,"
respectively.
3. In connection with the September Purchase Agreement, Zoltek and
the Lenders entered into a Registration Rights Agreement, dated as
of September 29, 2005 (the "September Registration Rights
Agreement"), pursuant to which Zoltek undertook certain
registration obligations to the Lenders.
4. In connection with the February Purchase Agreement, Zoltek and the
Lenders entered into a Registration Rights Agreement, dated as of
February 9, 2005 (the "February Registration Rights Agreement",
and together with the September Registration Rights Agreement, the
"Registration Rights Agreements"), pursuant to which Zoltek
undertook certain registration obligations to the Lenders.
5. Zoltek and the Lenders now wish to further modify certain of the
terms of the September Purchase Agreement, September Registration
Rights Agreement, February Purchase Agreement and the February
Registration Rights Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Zoltek and each Lender, severally and not jointly,
agree as follows:
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1. February Notes. Subject to Section 7 and the terms hereof, each Lender
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agrees to convert 100% of its February Notes (pertaining to an
aggregate of $20,000,000 of February Notes) and exercise 100% of its
February Warrants (pertaining to an aggregate of 457,142 shares of
Common Stock) and 100% of its warrants issued in connection with the
2004 Loan Agreement on the Business Day following the date of this
Amendment.
1.1 In consideration for such exercise, Zoltek shall issue to each
Lender a warrant in the form of Exhibit A attached hereto (the
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"Additional Warrant"), registered in the name of such Lender,
pursuant to which such Lender shall have the right to acquire the
number of shares of Common Stock indicated opposite such Lender's
name on Schedule A hereto under the heading "Additional
Warrant-Warrant Shares"
1.2 The parties hereby agree, that the September Warrants triggered
the anti-dilution provisions under Section 9(d) of the February
Warrants and as a result the exercise price of the February
Warrants shall be reduce to $14.50.
2. Third Closing. - Subject to the terms hereof and Section 7 and
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notwithstanding any provision of the September Purchase Agreement to
the contrary, each Lender and Zoltek agree that the Third Closing Date
shall occur on the Business Day following the date of the Nasdaq
Approval (as defined below).
2.1. In connection with the Third Closing, Zoltek shall issue to each
Lender (i) a note in the form of Exhibit B-1 hereto (the "April
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Notes I"), registered in the name of such Lender in the aggregate
principal amount of the purchase price indicated opposite such
Lender's name of Schedule A hereto, and (ii) a warrant in the form
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of Exhibit C-1 hereto (the "April Warrants I"), registered in the
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name of such Lender pursuant to which such Lender shall have the
right to acquire the number of shares of Common Stock indicated
opposite such Lender's name on Schedule A hereto under the heading
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"April Warrants I-Warrant Shares". The aggregate principal amount
of April Notes I issued to the Lenders under the Third Closing
shall be $20,000,000. The Conversion Price of the April I Notes
shall be $25.51; provided, however, that if the press release
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required under Section 8.4 has not been issued prior to 11am
Eastern time, the Conversion Price of the April I Notes shall be
the lesser of (i) $25.51 and (ii) the last bid price at 11:01 am
as reported on Bloomberg.
2.2. Zoltek shall deliver to each Lender the remaining closing
deliveries under Section 2.8 of the September Purchase Agreement
and each Lender shall deliver to Zoltek, in immediately available
funds by wire transfer to an account designed by Zoltek, its
respective purchase price.
2.3. For the purposes of this Amendment, the term "Nasdaq Approval"
shall mean the date in which the Company receives approval from
Nasdaq to issue all of the securities and the underlying shares of
Common Stock contemplated by this Amendment. Zoltek shall use its
best efforts to obtain the Nasdaq Approval as promptly as
possible. To the extent Nasdaq requires Zoltek to obtain the
consent
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of its shareholders, Zoltek hereby agrees that the provisions of
Section 5(b)(iii) of the April I Notes shall apply and are hereby
incorporated into this Amendment.
3. Fourth Closing. -Subject to the terms hereof and Section 7 and
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notwithstanding any provision of the September Purchase Agreement to the
contrary, each Lender and Zoltek agree that the Fourth Closing Date shall
occur on the Business Day following the Event Date (as defined below).
3.1. In connection with the Fourth Closing, Zoltek shall issue to each
Lender (i) a note in the form of Exhibit B-2 hereto (the "April
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Notes II", and together with the April Notes I, the "April
Notes"), registered in the name of such Lender in the aggregate
principal amount of the purchase price indicated opposite such
Lender's name of Schedule A hereto, and (ii) a warrant in the form
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of Exhibit C-2 hereto (the "April Warrants II", and together with
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the April Warrants I, the "April Warrants"), registered in the
name of such Lender pursuant to which such Lender shall have the
right to acquire the number of shares of Common Stock indicated
opposite such Lender's name on Schedule A hereto under the heading
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"April Warrants II-Warrant Shares". The aggregate principal amount
of April Notes II issued to the Lenders under the Fourth Closing
shall be $10,000,000. The Conversion Price of the April II Notes
shall be $25.51; provided, however, that if the press release
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required under Section 8.4 has not been issued prior to 11am
Eastern time, the Conversion Price of the April II Notes shall be
the lesser of (i) $25.51 and (ii) the last bid price at 11:01 am
as reported on Bloomberg.
3.2. Zoltek shall deliver to each Lender the remaining closing
deliveries under Section 2.9 of the September Purchase Agreement
and each Lender shall deliver to Zoltek, in immediately available
funds by wire transfer to an account designed by Zoltek, its
respective purchase price.
3.3. For the purposes of this Section 3, the term "Event Date" shall
mean the date, following the Nasdaq Approval, Zolek delivers to
each Lender either (i) a legal opinion of Hungarian counsel to the
Zoltek and Opco stating that the April Notes II are covered under
the Mortgage and Security Agreement, all in form and substance
reasonably satisfactory to the Administrative Agent and such
Lender; or (ii) an amended Mortgage and Security Agreement
covering the April Notes II, each properly endorsed and filed as
required by applicable law to perfect the security interest of the
Lenders. Notwithstanding anything to the contrary, each Lender
shall have the right to require a Fourth Closing at any time after
the expiration of 30 days following receipt of the Nasdaq
Approval.
4. Other Amendments.
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4.1. Zoltek and each Lender agree that Section 4.8(b) of the September
Purchase Agreement shall be deleted and replaced in its entirety
as follows:
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"(b) Prior to the one year anniversary of the Third
Closing Date, in the event the Borrower or any Subsidiary, directly or
indirectly, determines to offer, sell, grant any option to purchase, or
otherwise dispose of (or announces any offer, sale, grant or any option to
purchase or otherwise dispose of) any Common Stock or Common Stock
Equivalents (other than under and pursuant to the Notes and the Warrants) or
any of its Subsidiaries' equity or Common Stock Equivalents, including
without limitation, pursuant to a private placement, an equity line of
credit or a shelf registration statement in accordance with Rule 415 under
the Securities Act, (such offer, sale, grant, disposition or announcement
being referred to as "SUBSEQUENT PLACEMENT"), the Borrower shall deliver to
each Lender a written notice (the "SUBSEQUENT PLACEMENT NOTICE") of its
intention to effect such Subsequent Placement, which specifies in reasonable
detail the type of securities being offered (the "OFFERED SECURITIES"), all
of the other material terms of such Subsequent Placement, the amount of
proceeds intended to be raised thereunder, the names of the investors
(including the investment manager of such investors, if any) and the
investment bankers with whom such Subsequent Placement is proposed to be
effected, and attached to which shall be a term sheet or similar document.
Each Lender shall have until 6:30 p.m. (New York City time) on the fifth
Trading Day after their respective receipt of the Subsequent Placement
Notice to notify Borrower of its intention to participate ("NOTICE OF
ACCEPTANCE"), subject to completion of mutually acceptable documentation, in
such financing on the same terms as set forth in the Subsequent Placement
Notice, provided however, that as to any transaction or series of related
transactions, the Borrower shall have no obligation to offer the Lenders the
right to participate, in the aggregate, in an amount that exceeds the
greater of (i) 25% of the securities offered and (ii) a portion of the
Subsequent Placement equal to the then outstanding principal amount of the
Notes divided by the aggregate purchase price of the Subsequent Placement."
4.2. Omicron Master Trust ("Omicron") hereby agrees to assign a portion
of its right to purchase April Notes and April Warrants to
Rockmore Investment Master Fund, Ltd ("Rockmore"), as set forth on
Schedule A hereto.
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4.3. In the event Zoltek does not obtain Nasdaq Approval within 30 days
of the date of this Amendment, for a period of ten days
immediately following such 30 day period the Lenders shall have
the right upon written notice to Zoltek to terminate this
Amendment and the Closings.
5. Registration Rights. To ensure that the registration rights of the
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Lenders are not adversely affected as a result of the transactions
contemplated by this Amendment and to provide registration rights
consistent with the existing registration rights in respect of the
securities issuable upon exercise of the April Notes and April
Warrants, the parties agree as follows with respect to registration
rights.
5.1. In connection with the penalties due under the Registration Rights
Agreements, (i) the Lenders hereby agree to waive and release
Zoltek from any payment obligations under Section 2(c) of the
February Registration Rights Agreement, September Registration
Rights Agreement and the Prior Registration Rights Agreements that
accrued prior to the date hereof, (ii) Section 2(c) of the
February Registration Rights Agreement and the Prior Registration
Rights Agreements
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shall be deleted in its entirety, (iii) Section 2(c) of the
September Registration Rights Agreement shall remain in full force
and effect in connection with any penalties arising after the date
hereof, provided, however, that in the event of a breach of its
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obligations Zoltek shall issue to the Lenders an amount of
unregistered Common Stock equal to 35% of the total number of
shares of Common Stock into which the aggregate principal amount
of the 2003 Debentures (as defined in the April Note), the 2004
Debentures (as defined in the April Note), the 2004 Notes (as
defined in the April Note), February Notes, September Notes and
April Notes would be convertible, and (iv) the Lenders hereby
waive any Event of Default arising under all notes, debentures and
warrants issued pursuant to the September Purchase Agreement, the
February Purchase Agreement, the 2003 Securities Purchase
Agreement, the 2004 Securities Purchase Agreement, the 2004
Securities Purchase Agreement and the 2004 Loan Agreement to the
extent and only to the extent such Event of Default arose prior to
the date hereof. For the purposes of this Section 5.1, the term
"Prior Registration Rights Agreements" shall mean each of the
registration rights agreements among Zoltek and the Lenders
executed in connection with the 2003 Securities Purchase
Agreement, the 2004 Securities Purchase Agreement, the 2004
Securities Purchase Agreement and the 2004 Loan Agreement.
5.2. The parties hereby confirm that the definition of "Registrable
Securities" under the September Registration Rights Agreement
includes (a) the shares of Common Stock issuable upon conversion
of the 2003 Debentures (assuming such 2003 Debentures are held
until the maturity date thereof and all interest is accreted to
principal thereunder), (b) the shares of Common Stock issuable
upon the exercise of the warrants under the 2003 Securities
Purchase Agreement, (c) payment of interest on the 2003 Debentures
in Common Stock, (d) the shares of Common Stock issuable upon
conversion of the 2004 Debentures (assuming such 2004 Debentures
are held until the maturity date thereof and all interest is
accreted to principal thereunder), (e) the shares of Common Stock
issuable upon the exercise of the warrants under the 2004
Securities Purchase Agreement, (f) payment of interest on the 2004
Debentures in Common Stock, (g) the shares of Common Stock
issuable upon conversion of the 2004 Notes (assuming such 2004
Notes are held until the maturity date thereof and all interest is
accreted to principal thereunder), (h) the shares of Common Stock
issuable upon the exercise of the warrants under the 2004 Loan
Agreement, (i) payment of interest on the 2004 Notes in Common
Stock, (j) the shares of Common Stock issuable upon conversion of
the February Notes (assuming such September Notes are held until
the maturity date thereof and all interest is accreted to
principal thereunder), (k) the shares of Common Stock issuable
upon the exercise of the February Warrants, (l) payment of
interest on the February Notes in Common Stock, (m) the shares of
Common Stock issuable upon conversion of the September Notes
(assuming such September Notes are held until the maturity date
thereof and all interest is accreted to principal thereunder), (n)
the shares of Common Stock issuable upon the exercise of the
September Warrants, (o) payment of interest on the September Notes
in Common Stock, (p) the shares of Common Stock issuable upon
conversion of each of the April Notes (assuming such April Notes
are held until
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the maturity date thereof and all interest is accreted to principal
thereunder), (q) the shares of Common Stock issuable upon the
exercise of each of the April Warrants, (r) payment of interest on
each of the April Notes in Common Stock, (s) any other Common
Stock issuable upon conversion or exercise of any securities
previously issued to the Lenders by Zoltek and (t) any securities
issued or issuable upon any stock split, dividend or other
distribution, recapitalization or similar event, or any conversion
or exercise price adjustment with respect thereto after the date
hereof.
5.3. Zoltek will use commercially reasonable efforts to prepare and
file a registration statement to cover all shares of Common Stock
issuable under the Transaction Documents, including the
Registrable Securities.
5.4. The registration statement contemplated in Section 2(b) of the
September Registration Rights Agreement will constitute a
"Registration Statement" under the September Registration Rights
Agreement, and shall be subject to all the rights and obligations
of and upon each of Zoltek and the "Lenders" thereunder. With
respect to the Registration Statement contemplated by Section 2(b)
of the September Registration Rights Agreement, the Filing Date
shall be the 20th calendar day following the date hereof. The
calculation of the Effectiveness Date with respect to the initial
Registration Statement contemplated by Section 2(b) of the
September Registration Rights Agreement shall be the earlier of:
(i) the 90th day following the date hereof; provided, however,
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that, if the Commission reviews and has written comments to the
filed Registration Statement that would require the filing of a
pre-effective amendment thereto with the Commission, then the
Effectiveness Date under this clause (i) shall be the 120th day
following the date hereof and (ii) the fifth Trading Day following
the date on which Zoltek is notified by the Commission that the
initial Registration Statement will not be reviewed or is no
longer subject to further review and comments.
5.5. Notwithstanding anything to he contrary contained in this Section
5, each of the penalties due to the Lenders under the February
Registration Rights Agreement, September Registration Rights
Agreement and the Prior Registration Rights Agreements shall
remain in full force and effect and continue to accrue until such
time as Zoltek has obtained Nasdaq Approval.
6. Continued Validity of Transaction Documents under Purchase Agreements.
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The parties hereto agree that the Purchase Agreements and the
Transaction Documents entered into in connection therewith (as amended
by this Amendment), remain in full force and effect, modified to the
extent and only to the extent necessary to give effect to this
Amendment and the transactions herein contemplated.
7. Closing.
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7.1. Closing. In connection with the Third Closing, on the Trading Day
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following the date on which the conditions set forth in Section
2.8 of the September Purchase
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Agreement are satisfied and the Nasdaq Approval is received, and in
connection with the Fourth Closing, on the Trading Day following
the date following the Event Date on which the conditions set
forth in Section 2.9 of the September Purchase Agreement are
satisfied, or on such other date as the parties may agree (each, a
"Closing Date"), the closing of the transactions contemplated by
this Amendment shall occur (each, a "Closing").
8. Miscellaneous.
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8.1. Fees and Expenses. Zoltek has agreed to reimburse Rockmore $30,000
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for its legal fees and expenses in connection with this Amendment.
Accordingly, the amount Rockmore must pay to Zoltek to purchase
the April I Notes under Section 2 shall be reduced by $30,000.
Except for the foregoing, each party hereto will bear the fees and
expenses of its own counsel and advisors in connection with the
negotiation and entering into of this Amendment. Zoltek shall pay
all transfer agent fees, stamp taxes and other taxes and duties
levied in connection with the issuance of any Securities.
8.2. Entire Agreement. This Amendment and the Transaction Documents,
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together with the exhibits and schedules thereto, contain the
entire understanding of the parties with respect to the subject
matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into such
documents, exhibits and schedules.
8.3. Equal Treatment of Lenders. No consideration shall be offered or
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paid to any person to amend or consent to a waiver or modification
of any provision of any of the Transaction Documents unless the
same consideration is also offered to all of the parties to the
Transaction Documents. For clarification purposes, this provision
constitutes a separate right granted to each Lender by Zoltek and
negotiated separately by each Lender, and is intended to treat for
Zoltek and the Lenders as a class and shall not in any way be
construed as the Lenders acting in concert or as a group with
respect to the purchase, disposition or voting of Securities or
otherwise.
8.4. Public Announcement. Zoltek shall, by11:00 a.m. Eastern time on
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April 28, 2006, issue a press release disclosing the material
terms of the transactions contemplated hereby and by 4:30 p.m.
Eastern time on such date, file a Current Report on Form 8-K,
attaching such press release and the Transaction Documents
thereto, each reasonably acceptable to each Lender. Zoltek and
each Lender shall consult with each other in issuing any other
press releases with respect to the transactions contemplated
hereby, and neither Zoltek nor any Lender shall issue any such
press release or otherwise make any such public statement without
the prior consent of Zoltek, with respect to any press release of
any Lender, or without the prior consent of each Lender, with
respect to any press release of Zoltek, which consent shall not
unreasonably be withheld, except if such
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disclosure is required by law, in which case the disclosing
party shall promptly provide the other party with prior notice of
such public statement or communication. Notwithstanding the
foregoing, Zoltek shall not publicly disclose the name of any
Lender, or include the name of any Lender in any filing with the
Commission or any regulatory agency or Trading Market, without the
prior written consent of such Lender, except (i) as required by
federal securities law in connection with the registration
statement contemplated by the Registration Rights Agreement and
(ii) to the extent such disclosure is required by law or Trading
Market regulations, in which case Zoltek shall provide the Lenders
with prior notice of such disclosure permitted under subclause (i)
or (ii).
8.5. Notices. Any and all notices or other communications or deliveries
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required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective as specified in the
September Purchase Agreement. The address for such notices and
communications shall be as set forth on the signature pages
attached to the September Purchase Agreement.
8.6. Amendments; Waivers. No provision of this Amendment may be waived
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or amended except in a written instrument signed, in the case of
an amendment, by Zoltek and each Lender or, in the case of a
waiver, by the party against whom enforcement of any such waiver
is sought. No waiver of any default with respect to any provision,
condition or requirement of this Amendment shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either
party to exercise any right hereunder in any manner impair the
exercise of any such right.
8.7. Amendment Controls. If any topic is addressed both in the Purchase
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Agreements (or any document related thereto) and in this
Amendment, this Amendment shall control.
8.8. Construction. The headings herein are for convenience only, do not
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constitute a part of this Amendment and shall not be deemed to
limit or affect any of the provisions hereof. The language used in
this Amendment will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
8.9. Governing Law. All questions concerning the construction,
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validity, enforcement and interpretation of this Amendment shall
be governed by and construed and enforced in accordance with the
internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. The parties agree that
Section 8.8 of the September Purchase Agreement shall apply to
this Amendment as if set forth in its entirety herein.
8.10. Survival. The representations and warranties contained herein
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shall survive the delivery, exercise and/or conversion of the
Securities, as applicable for the applicable statue of
limitations.
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8.11. Execution. This Amendment may be executed in two or more
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counterparts, all of which when taken together shall be considered
one and the same document and shall become effective when
counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign
the same counterpart.
8.12. Severability. If any provision of this Amendment is held to be
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invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this
Amendment shall not in any way be affected or impaired thereby and
the parties will attempt to agree upon a valid and enforceable
provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this
Amendment.
8.13. Independent Nature of Lenders' Obligations and Rights. The
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obligations of each Lender hereunder are several and not joint
with the obligations of any other Lender, and no Lender shall be
responsible in any way for the performance of the obligations of
any other Lender. Nothing contained herein, and no action taken by
any Lender pursuant hereto, shall be deemed to constitute the
Lenders as a partnership, an association, a joint venture or any
other kind of entity, or create a presumption that the Lenders are
in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated hereby. Each Lender
shall be entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this
Amendment and it shall not be necessary for any other Lender to be
joined as an additional party in any proceeding for such purpose.
The Lenders have not relied upon the same legal counsel in their
review and negotiation of this Amendment. Zoltek has elected to
provide all Lenders with the same terms and form of Amendment for
the convenience of Zoltek and not because it was required or
requested to do so by the Lenders. Each Lender represents that it
has been represented by its own separate legal counsel in its
review and negotiations of this Amendment and each party
represents and confirms that Proskauer Rose LLP represents only
Omicron in connection with this Amendment.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their respective authorized signatories as of the
date first indicated above.
ZOLTEK COMPANIES, INC.
By: /s/ Kevin Schott
Name: Kevin Schott
Title: Chief Financial Officer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASERS FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to
be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of Investing Entity: _____________________________________________________
Signature of Authorized Signatory of Investing Entity: ________________________
Name of Authorized Signatory: _________________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Authorized Entity:____________________________________________
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SCHEDULE A
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ADDITIONAL APRIL NOTES I / APRIL WARRANTS APRIL NOTES II / APRIL WARRANTS
WARRANTS PURCHASE PRICE I-WARRANT SHARES PURCHASE PRICE II-WARRANT SHARES
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Rockmore
Investment
Master Fund, Ltd 0 $3,333,333 45,734 $1,666,667 22,867
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Omicron Master
Trust 55,556 $7,333,333 100,615 $3,666,667 50,308
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Smithfield
Fiduciary LLC 11,112 $3,333,333 45,734 $1,666,667 22,867
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Iroquois
Capital, L.P. 8,334 $2,000,000 27,441 $1,000,000 13,721
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Cranshire
Capital, L.P. 16,667 $2,000,000 27,441 $1,000,000 13,721
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Midsummer
Investment Ltd. 19,444 $2,000,000 27,441 $1,000,000 13,721
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Total 111,113 $20,000,000 274,316 $10,000,000 137,205
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