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Exhibit 4.4
ALLOCATION AGREEMENT
THIS ALLOCATION AGREEMENT (the "Agreement") is entered into this ___
day of _________, 1998 by and among Xxxxx X. Xxxx, Xxxxx X. Xxxx, CEW Partners
and Xxxxxx Trust (individually, a "Purchaser" and collectively, "Purchasers").
RECITALS
1. Specialty Chemical Resources, Inc., a Delaware corporation (the
"Company"), intends to distribute to the record holders of its Common Stock, par
value $.10 per share (the "Common Stock"), and holders of its 6% Convertible
Subordinated Notes Due 2006, subscription rights (the "Rights") to subscribe for
and purchase up to $1,800,000 principal amount of the Company's Convertible
Subordinated Notes due 2008 (the "Notes").
2. The Company has filed with the Securities and Exchange Commission a
registration statement on Form S-3 under the Securities Act of 1933, as amended,
with respect to the offering and sale of the Notes and the Rights with respect
to same (the "Rights Offering"). The Prospectus included with the Registration
Statement sets forth the terms of the Rights Offering (the "Prospectus").
3. Capitalized terms not otherwise defined in this Agreement shall have
the meanings set forth in the Prospectus.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements of the parties hereto, and other good and valuable
consideration and subject to the conditions hereof, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. ALLOCATION. Each of the Purchasers agrees that the Notes
collectively purchased by the Purchasers shall be allocated among the Purchasers
as follows:
(a) Each of the Purchasers presently intends, but is not obligated,
to execute to the fullest extent his or its Rights to subscribe for and
to purchase the Notes.
(b) Immediately following completion of the Rights Offering, the
Purchasers, by transfers among themselves, will allocate the Notes
purchased by them such that the Xxxx Group (as defined below), CEW
Partners and Xxxxxx Trust will each own one-third (1/3) of such Notes.
The "Xxxx Group" means Xxxxx X. Xxxx and Xxxxx X. Xxxx collectively.
2. CLOSING.
(a) The closing of the transactions provided for in this Agreement
(the "Closing") will take place at the offices of Benesch, Friedlander,
Xxxxxx & Xxxxxxx LLP, 0000 XX Xxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx
00000 or at such other place as the parties hereto may mutually agree,
(x) on the fifth (5th) business day following the Expiration Date or
(y) at such other time and date as the parties hereto may designate by
mutual consent.
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(b) On the second (2nd) business day following the Expiration Date,
the Company shall send notice to each Purchaser which sets forth the
allocation of Notes provided for in Section 1 above (the "Allocation
Notice"). At the Closing, each Purchaser will deliver that number of
certificates representing the Notes, duly endorsed in blank, as is set
forth opposite his or its name on the Allocation Notice as is necessary
to fully effect the allocation set forth in this Agreement and each
transferee of such Notes shall pay for such Notes at the Rights
Offering price therefor.
3. NOTICES. Any notice or other communication required or permitted
hereunder must be in writing and delivered personally (including by courier),
sent by facsimile transmission or sent by certified, registered or express mail,
postage prepaid. Any such notice will be deemed given when so delivered
personally, or if telegraphed, telexed or sent by facsimile transmission, when
transmitted, or, if mailed, forty-eight (48) hours after the date of deposit in
the United States first-class mail, certified or registered, return receipt
requested, as follows:
Xxxxx X. Xxxx
Xxxxx X. Xxxx
c/o Specialty Chemical Resources, Inc.
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
CEW Partners
00 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Xxxxxx Trust
c/o Trust Investments
00 Xxxxxx Xxxx
Xxxxx, Xxx Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may, by notice given in accordance with this Section 3 to the other
party, designate another address or person for receipt of notices hereunder.
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4. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding between the parties with respect to the matters described
herein, and supersedes all prior discussions, agreements and undertakings,
written or oral, of any and every nature with respect thereto.
5. WAIVERS AND AMENDMENTS. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived, only by a
written instrument signed by authorized representatives of the parties or, in
the case of a waiver, by an authorized representative of the party waiving
compliance. No such written instrument will be effective unless it expressly
recites that it is intended to amend, supersede, cancel, renew or extend this
Agreement or to waive compliance with one or more of the terms hereof, as the
case may be. No delay on the part of any party in exercising any right, power or
privilege hereunder will operate as a waiver thereof, nor will any waiver on the
part of any party of any such right, power or privilege, or any single or
partial exercise of any such right, power or privilege, preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
6. GOVERNING LAW. This Agreement will be governed in all respects,
including validity, construction, interpretation and effect, by the laws of the
State of Ohio (without regard to principles of conflicts of law), except to the
extent that the Delaware General Corporation Law specifically and mandatorily
applies to the issuance of the certificates representing the Notes and the terms
thereof.
7. BINDING EFFECT; NO ASSIGNMENT. This Agreement will be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement is not assignable without the prior written
consent of each of the parties hereto or by operation of law; provided, however,
that a Purchaser may assign all or a portion of his or its rights and
obligations hereunder to an "Affiliate." The term "Affiliate" as used herein
with respect to any person or entity shall mean (i) any person, corporation or
other organization which, directly or indirectly, controls, is controlled by or
is under common control with such person or entity, (ii) any trust or other
estate in which such person, corporation or other organization has a beneficial
interest or as to which such person, corporation or other organization serves as
a trustee or any similar fiduciary capacity, (iii) any spouse of such person and
any lineal descendants and ancestors of such person and such spouse and the
spouses of any such lineal descendants and ancestors, and (iv) any trust solely
for the benefit of the spouses and/or the lineal descendants and ancestors of
such person.
8. SEVERABILITY. In the event that any provision of this Agreement
shall be declared by a court of competent jurisdiction to be invalid, illegal or
otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
9. COUNTERPARTS. This Agreement may be executed by the parties hereto
in separate counterparts which together will constitute one and the same
instrument.
10. FURTHER ASSURANCES. Each party will, at the request of the other
party, at any time and from time to time following the Closing, promptly execute
and deliver, or cause to be executed and delivered, to such requesting party all
such further instruments and take all such further action as may
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be reasonably necessary or appropriate to confirm or carry out the provisions
and intents of this Agreement and of the instruments delivered pursuant to this
Agreement.
11. NO THIRD-PARTY BENEFICIARIES. It is understood and agreed between
the parties hereto that this Agreement and the representations, warranties and
covenants made herein are made expressly and solely for the benefit of the other
party hereto (or their respective successors or permitted assigns), and that no
other person will be entitled or be deemed to be a third-party beneficiary of
any party's rights under this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement, all
as of the date first written above.
_______________________________________
Xxxxx X. Xxxx, Individually
_______________________________________
Xxxxx X. Xxxx, Individually
CEW PARTNERS
By:____________________________________
Name:__________________________________
Title:_________________________________
XXXXXX TRUST
By:____________________________________
Name:__________________________________
Title:_________________________________
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