Vertex Energy, Inc. 8-K


Exhibit
10.2


 


Tensile-Myrtle
Grove Acquisition Corporation

c/o Tensile Capital Management, LLC

700 Larkspur Landing Circle, Suite 255

Larkspur, CA 94939


 


July
25, 2019


 





	Vertex Energy Operating LLC	Vertex Energy, Inc.
	c/o Vertex Energy, Inc.	1331 Gemini Street, Suite 250
	1331 Gemini Street, Suite 250	Houston, TX 77058
	Houston, TX 77058	 
	 	 




Re: Right of First Offer


 


Dear
Sir or Madam:


 


Reference
is made to that certain limited liability company agreement (the “LLC Agreement”), dated as of the date hereof,
of Vertex Refining Myrtle Grove LLC (the “Company”), by and among the Company and the members thereof.


 


Vertex
Energy Operating LLC (“VEO”), Vertex Energy, Inc. (“Vertex Parent”) and Tensile-Myrtle Grove
Acquisition Corporation (“Tensile”) hereby agree that:


 


1.      If
at any time VEO, Vertex Parent or any of their Affiliates (as defined in the LLC Agreement) (each, a “Vertex Party”)
proposes to issue, sell, transfer, assign, pledge, encumber or otherwise directly or indirectly dispose of (in each case, “Transfer”)
any equity or debt securities of (x) the Company (any such security, a “Company Transferred Security”) and/or
(y) Cedar Marine Terminals, L.P. or any other entity formed or designated to operate the Cedar Marine Terminal in Baytown, TX
(any such security, a “Cedar Marine Security” and together with any Company Transferred Security, a “Transferred
Security”), in each case held by such Vertex Party for value:


 


(a)       The
Vertex Party shall give Tensile written notice of such Vertex Party’s intention to make a Transfer, which written notice
shall set forth the material terms and conditions of such proposal, including (i) the type and number of Transferred Securities,
(ii) the rights and preferences of the Transferred Securities and (iii) the price per Transferred Security (the “ROFO
Notice”).


 


(b)       Within
30 days after delivery of the ROFO Notice, Tensile or any of its Affiliates (each, a “Tensile Party”) will
have the right to make an offer to purchase from the Vertex Party all, but not less than all (unless the cost of the Transferred
Securities is greater than $50,000,000, in which case the Tensile Party will have the right to make an offer to purchase $50,000,000
of the Transferred Securities), the Transferred Securities referenced in the ROFO Notice by delivering written notice (the “Offer
Notice”) to the Vertex Party, which Offer Notice will contain the terms and conditions (including the price) on which
the Tensile Party is willing to purchase the Transferred Securities; for the avoidance of doubt, such terms and conditions may
vary from those set forth by the Vertex Party in the ROFO Notice.


 






     


     


    

 


(c)       If
any Tensile Party validly delivers an Offer Notice, and the Vertex Party elects to sell to the Tensile Party at the price set
forth in the Offer Notice, the Vertex party shall provide written notice to the Tensile Party of such acceptance (the “Offer
Acceptance Notice”) within 15 business days following the Vertex Party’s receipt of the Offer Notice (the “Response
Period”), provided that the Vertex Party shall be deemed to have elected not to accept the offer set forth in the Offer
Notice if it fails to provide the Offer Acceptance Notice within the Response Period. If the Vertex Party timely delivers an Offer
Acceptance Notice, the Tensile Party and the Vertex Party shall negotiate in good faith to execute a purchase agreement upon the
terms of the Offer Notice within 20 business days following the receipt by the Tensile Party of the Offer Acceptance Notice.


 


(d)       If
no Tensile Party validly delivers an Offer Notice, then the provisions of this letter agreement shall cease to apply for a period
of 90 days.


 


(e)       If
a Tensile Party validly delivers an Offer Notice, and the Vertex Party does not accept the offer of the Tensile Party, the Vertex
Party shall have the right, for a period of 90 days, to make a Transfer of the Transferred Security to any other party; provided
that (i) the price at which such Transfer occurs shall not be less than the price per Transferred Security specified in the
ROFO Notice and (ii) the terms on which such Transfer occurs shall not be more favorable in the aggregate to the proposed transferee
than those set forth in the ROFO Notice.


 


2.      The
rights of any Tensile Party set forth in Paragraph 1 shall no longer apply to (a) any Company Transferred Securities after
any Tensile Party has purchased Company Transferred Securities of $50,000,000 or more and (b) any Cedar Marine Transferred Securities
after any Tensile Party has purchased Cedar Marine Transferred Securities of $50,000,000 or more, in each case determined by the
amount paid by a Tensile Party at the closing of any applicable transaction.


 


3.      The
provisions of Article XIV of the LLC Agreement shall apply to this letter agreement mutatis mutandis.


 






     2


     


    

 





	Regards,	 
	 	 
	Tensile-Myrtle
    Grove Acquisition Corporation	 
	By:	 
	 	 
	/s/
    Douglas J. Dossey	 
	 	 
	Name:
    Douglas J. Dossey	 
	Title:
    Director	 
	 	 
	Agreed
    and Accepted:	 
	 	 
	Vertex
    Energy Operating LLC	 
	By:	 
	 	 
	/s/
    Benjamin P. Cowart	 
	Name: Benjamin P. Cowart	 
	Title: CEO	 
	 	 
	Vertex
    Energy, Inc.	 
	By:	 
	 	 
	/s/
    Benjamin P. Cowart	 
	Name: Benjamin P. Cowart	 
	Title: CEO	 







 



     3