EXHIBIT 10.7
AGREEMENT
AGREEMENT dated as of June 28, 2001 by and among JLM Industries,
Inc., a Delaware corporation (the "COMPANY"), Phoenix Enterprises LLC
("PHOENIX") and Xx. Xxxxxx X. Xxxxxxxx ("XXXXXXXX"), who together with Phoenix,
are collectively referred to as the "HOLDERS" and individually as a "HOLDER".
WHEREAS, the parties hereto desire to enter into this agreement (the
"AGREEMENT");
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
REPRESENTATIONS
Section 1.1 REPRESENTATIONS OF THE COMPANY. The Company hereby
represents to the Holders that (i) it has the full legal right, power and
authority to enter into and perform this Agreement, (ii) the execution and
delivery of this Agreement by the Company has been duly authorized by the
Company, and (iii) this Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
similar laws relating to, or affecting the enforcement of creditor's rights
generally and by general equitable principles (regardless of whether enforcement
is sought in equity or at law).
Section 1.2 REPRESENTATIONS OF THE HOLDERS. Each Holder hereby
represents to the Company that (i) such Holder has the full legal right, power
and authority to enter into and perform this Agreement, (ii) the execution and
delivery of this Agreement by Phoenix has been duly authorized by Phoenix, and
(iii) this Agreement constitutes, or shall constitute when executed and
delivered at or prior to Closing, a valid and binding obligation of the Holders
enforceable against the Holders in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws relating to, or
affecting the enforcement of creditor's rights generally and by general
equitable principles (regardless of whether enforcement is sought in equity or
at law).
ARTICLE II
STANDSTILL PROVISIONS
Section 2.1 STANDSTILL PROVISIONS. (a) During the Term (as defined
below), each Holder will not, and will cause each of its Affiliates (as defined
below) not to, either alone or as part of a "group" (as such term is used in
Section 13d-5 (as such rule is currently in effect) of the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), directly or indirectly:
(i) make, or in any way participate, directly or
indirectly, in any "solicitation in opposition" (as such term is defined or used
in Regulation 14A under the Exchange Act);
(ii) initiate or propose any "shareholder proposals" for
submission to a vote of stockholders, whether by action at a stockholder meeting
or by written consent with respect to the Company, as such term is used in
Section 14(a) of the Exchange Act;
(iii) form, join or in any way participate in a group to
take any actions otherwise prohibited by the terms of this Agreement; or
(iv) enter into any arrangements or understandings with
any third party with respect to any of the foregoing.
(b) For purposes of this Agreement, the term "Affiliate" shall
have meaning given to such term under Rule 405 of the Securities Act of 1933, as
amended.
ARTICLE III
MISCELLANEOUS
Section 3.1 FEES AND EXPENSES. The Company shall pay the fees and
expenses of all attorneys, accountants and other advisors, if any, of the
parties hereto and all other expenses incurred by such party incident to the
negotiation, preparation, execution and delivery of this Agreement.
Section 3.2 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect.
Section 3.3 SPECIFIC ENFORCEMENT; CONSENT TO JURISDICTION. (a) The
parties acknowledge and agree that irreparable damage would occur in the event
that any provision of this Agreement was not preformed in accordance with its
specific terms or was otherwise breached, and further acknowledge and agree that
money damages are an inadequate remedy for the breach of this agreement because
of the difficulty of ascertaining the amount of damage that would be suffered in
the event of such breach. The parties accordingly agree that the other party
shall be entitled to obtain specific performance of any provision of this
Agreement and injunctive or other equitable relief to prevent or cure breaches
of any provision of this Agreement, this being in addition to any other remedy
to which they may be entitled by law or equity.
(b) Each of the parties hereto irrevocably and unconditionally
submits to the exclusive jurisdiction of (i) the state courts of the State of
New York located in New York City and (ii) the United States District Court for
the Southern District of New York, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby.
Each of the parties hereto agrees to commence any action, suit or
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proceeding relating hereto in the state courts of the State of New York located
in New York City, or if such suit, action or other proceeding may not be brought
in such court for jurisdictional reasons, in the United States District Court
for the Southern District of New York. Each party hereto further agrees that
service of any process, summons, notice or document by U.S. registered mail to
such party's respective address set forth below shall be effective service of
process for any action, suit or proceeding brought in any such court with
respect to any matters to which it has submitted to jurisdiction in this Section
3.3(b). Each party hereto irrevocably and unconditionally waives any objection
to the laying of venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby in the state courts of the
State of New York located in New York City and the United States District Court
for the Southern District of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
Section 3.4 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect to the matters covered hereby
and this Agreement may be amended only by an agreement in writing executed by
the parties hereto.
Section 3.5 NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be effective (i)
when personally delivered or delivered by telecopy on a business day during
normal business hours with confirmation postmarked the same day, at the address
or number designated below or (ii) on the business day following the date of
mailing by overnight courier, fully prepaid, addressed to such address. The
addresses for such communications shall be:
If to the Company:
JLM Industries, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. XxxXxxxxx
Facsimile: (000) 000-0000
with a copy to:
Holland & Knight LLP
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
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If to any Holder to:
Phoenix Enterprises LLC
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxx Marks & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Any party hereto may from time to time change its address for notices under this
Section 3.5 by giving at least 10 days notice of such changed address to the
other parties hereto.
Section 3.6 WAIVERS. No waiver by either party of any breach of any
provision hereof shall be deemed to be a continuing waiver in the future thereof
or a waiver of any other provision hereof; nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
Section 3.7 HEADINGS. The headings herein are for convenience only,
do not constitute a part of this Agreement, and shall not be deemed to limit or
affect any of the provisions hereof.
Section 3.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their successors and
legal representatives. The parties shall not assign this Agreement or any rights
hereunder without the prior written consent of the other parties hereto.
Section 3.9 GOVERNING LAW. This Agreement 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 conflict of laws.
Section 3.10 TERMINATION. The term of this Agreement shall commence
on the date hereof and expire on June 28, 2003 (the "TERM"), whereupon this
Agreement, except for Article III hereof, shall terminate and have no further
force or effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
or have caused this Agreement to be duly executed by their respective authorized
officers as of the date hereof.
JLM INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
PHOENIX ENTERPRISES LLC
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxx
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