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EXHIBIT 10.12
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated as of January 4, 1997 (the
"Agreement"), between Pioneer Companies, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxx (the "Purchaser").
WHEREAS, pursuant to the Executive Employment Agreement (the
"Employment Agreement"), dated as of the date hereof, between the Company and
the Purchaser, the Company has agreed to employ the Purchaser, and the
Purchaser has agreed to be employed by the Company upon and subject to the
terms therein;
WHEREAS, the Company desires to sell 150,000 shares (the
"Shares") of the Class A common stock, par value $.01 per share of the Company
(the "Common Stock") to the Purchaser; and
WHEREAS, the Purchaser desires to purchase the Shares upon the
terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual terms, conditions
and other agreements set forth herein, the parties hereto hereby agree as
follows:
Section 1. Sale and Purchase of Securities. (a) Subject
to the terms and conditions set forth herein, on the Closing Date (as defined
herein), the Company shall sell to the Purchaser and the Purchaser shall
purchase from the Company the Shares for a cash payment per share equal to the
average of the closing sale prices of the Common Stock as reported on the
NASDAQ National Market System on the days during which the Common Stock was
traded during the thirty (30) consecutive trading days immediately preceding
the date hereof (the "Purchase Price").
(b) The sale and purchase of the Shares shall be effected by
the Company's execution and delivery to the Purchaser of a duly executed stock
certificate evidencing the Shares registered in his name, and by the delivery
by the Purchaser to the Company of the Purchaser's check in the amount of the
purchase price of the Shares.
(c) The closing of the transactions hereunder (the "Closing")
shall take place on such day on or prior to the forty-fifth day (or if not a
business day the next succeeding business day) after the date hereof as
specified in a notice from the Company to the Purchaser (the "Closing Date").
Section 2. Representations and Warranties of the Company.
The Company represents and warrants to the Purchaser as follows:
(a) Organization and Corporate Power. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and has
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all requisite power and authority to execute, deliver and perform this
Agreement and to issue, sell and deliver the Shares hereunder.
(b) Authorization, Enforceability. All corporate action
on the part of the Company necessary for the authorization, execution and
delivery of this Agreement and the issuance, sale and delivery of the Shares
hereunder has been taken. This Agreement has been duly authorized, executed
and delivered by the Company and constitutes the valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
Section 3. Representations of the Purchaser. The Purchaser
hereby represents and warrants as follows:
(a) Validity of Agreement. This Agreement has been
duly executed by the Purchaser and constitutes the valid and binding obligation
of the Purchaser enforceable against the Purchaser in accordance with its
terms, except that such enforcement may be subject to applicable bankruptcy,
insolvency, moratorium or similar laws affecting the enforcement of creditors'
rights generally and general principles of equity.
(b) No Consents. The execution, delivery and
performance by the Purchaser of this Agreement does not require any consent or
approval of any person or entity.
(c) Investment Representations.
(i) The Purchaser is acquiring the Shares solely
for his own account as principal, for investment purposes only, and
not with a view to, or for, subdivision, resale, distribution or
fractionalization thereof, in whole or in part, or for the account, in
whole or in part, of others, and no other person or entity has a
direct or indirect beneficial interest in the Shares; further, the
Purchaser intends to hold the Shares as an investment and does not
presently anticipate any change in circumstances or other particular
occasion or event that would cause him to attempt to sell any of the
Shares;
(ii) the Purchaser understands that no federal or
state agency has made any finding or determination as to the fairness
of this investment and that the sale of the Shares is intended to be
exempt from registration both under the Securities Act of 1933, as
amended (the "Securities Act"), and any applicable state securities
law, and, in furtherance thereof, the Purchaser represents and
warrants to, and agrees with, the Company that he has the financial
ability to bear the economic risk of his investment, and has adequate
means for providing for his current needs and personal contingencies
and has no need for liquidity with respect to his investment in the
Shares;
(iii) the Purchaser has been given the opportunity
to ask questions of, and receive information and answers from, the
Company concerning matters pertaining to the Company and its business
and affairs and this investment, and all such questions have
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been answered, and all such information has been provided, to his
satisfaction and he has determined that the Shares are a suitable
investment for him and that at this time he could bear the complete
loss of his investment;
(iv) the Purchaser is not relying on the Company
in regard to the tax and other personal financial considerations
related to this investment, and the Purchaser has, to the extent he
deems it necessary, relied on the advice of, or has consulted with,
only his own advisors;
(v) the Purchaser will not sell or otherwise
transfer the Shares without registration under the Securities Act, and
applicable state securities laws or unless the Company has received an
appropriate opinion of counsel reasonably acceptable to it that
registration thereunder is not required, and fully understands and
agrees that he must bear the economic risk of his purchase for an
indefinite period of time because, among other reasons, the Shares
have not been registered under the Securities Act or under any
applicable state securities laws and, therefore, cannot be resold,
pledged, assigned or otherwise disposed of unless they are
subsequently registered under the Securities Act and any applicable
state securities laws or an exemption from such registration is
available. The Purchaser understands that the Company is under no
obligation to register the Shares on his behalf or to assist him in
complying with any exemption from registration under the Securities
Act or any state securities laws; and
(vi) the Purchaser is a resident of the state
specified for the Purchaser in Section 6 hereof.
Section 4. Legend. Any certificates evidencing the Shares
shall bear the following legend:
"The shares represented by this certificate have not
been registered under the Securities Act of 1933, as amended (the
"Act"), and may not be transferred or sold except pursuant to an
effective registration statement under the Act or in a transaction
which, in the opinion of counsel reasonably satisfactory to Pioneer
Companies, Inc., qualifies as an exempt transaction under the Act and
the rules and regulations promulgated thereunder."
Section 5. Condition to Obligations of the Parties. The
obligations of the Company and the Purchaser to consummate the transactions
contemplated by this Agreement are subject to the continued effectiveness of
the transactions contemplated by the Employment Agreement as of the Closing
Date.
Section 6. Notices. All communications under this Agreement
shall be in writing and shall be delivered by hand, by facsimile or by
overnight courier or by registered or certified mail, postage prepaid: (i)
if to the Company, at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx
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06830, Attention: Xxxxxxx X. Xxxxxx, facsimile number 000-000-0000; and (ii)
if to the Purchaser at 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000.
Section 7. Fees and Expenses. All costs, fees and expenses
incurred in connection with this Agreement ("Costs") shall be paid by the
party incurring such Costs.
Section 8. Entire Agreement. This Agreement represents the
entire agreement and understanding of the parties with reference to the
transactions set forth herein and no representations or warranties have been
made in connection with this Agreement other than those expressly set forth
herein. This Agreement supersedes all prior negotiations, discussions,
correspondence, communications, understandings and agreements between the
parties relating to the subject matter of this Agreement, all of which are
merged into this Agreement.
Section 9. Amendments. This Agreement may be amended,
modified or supplemented only by a written instrument executed by the parties
hereto.
Section 10. Counterparts. This Agreement may be
executed in two counterparts, each of which shall be deemed an original and all
of which together shall be considered one and the same agreement.
Section 11. Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE CHOICE-OF-LAW PROVISIONS
THEREOF.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
PIONEER COMPANIES, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
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