Exhibit 10.1 (a)
STOCKHOLDERS AGREEMENT
AGREEMENT made this 29th day of December, 1987, by and between
PHILIPP BROTHERS CHEMICALS, INC., a New York corporation (the "Corporation") and
the following stockholders of the Corporation:
XXXXXXX X. XXXXXXXX ("CHB"), owner of 6,300 shares of Class A
capital stock of the Corporation;
XXXX X. XXXXXXXX ("JCB"), owner of 5,670 shares of Class B and
6,300 shares of Class C capital stock of the Corporation; and
XXXXXX X. XXXXXXX ("MSS"), owner of 630 shares of Class B
capital stock of the Corporation.
WITNESSETH:
WHEREAS, the parties desire to provide for certain rights and
obligations with respect to the shares of Class B capital stock of the
Corporation now owned, or hereafter acquired by MSS;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, IT IS AGREED AS FOLLOWS:
1. A. Subject to paragraph "6" hereof, MSS agrees that he will not
sell, assign, transfer, pledge, hypothecate, encumber or otherwise dispose of
any shares of Class B capital stock of the Corporation now owned, or hereafter
acquired, without first offering (by written notice to the Corporation) to sell
to the Corporation all such shares of Class B capital stock then owned by him.
B. If any such offer of sale shall be made, the Corporation shall
have the option to accept the same by written notice to the offeror within
thirty (30) days after receipt of such offer. The determination as to whether
the Corporation shall exercise the said option to accept any offer of sale shall
be made at the election of the holders of the Class A and Class C capital stock,
by written notice to the Corporation and the offeror.
C. If any such offer of sale shall be accepted by the Corporation,
the price of the shares to be sold shall be the agreed value thereof as at the
end of the month in which such offer of sale was made, as determined under
paragraph "8" hereof, and such price shall be paid as provided in paragraph "9"
hereof.
D. If the Corporation shall not accept any such offer of
sale, then the offeror shall have the right to dispose of such shares without
restriction.
2. A. Subject to paragraph "6" hereof, MSS shall have the right, at any
time, by written notice to the Corporation, to sell to the Corporation and the
Corporation shall purchase from him all (but not less than all) shares of Class
B capital stock of the corporation now owned or hereafter acquired by him.
B. In the event of such sale, the price shall be the agreed value
thereof as at the end of the month in which written notice of such sale was
received by the Corporation, as determined under paragraph "8" hereof and such
price shall be paid as provided in paragraph "9" hereof.
3. A. Subject to paragraph "6" hereof, in the event MSS shall become
permanently disabled (as hereinafter defined), then on the date thirty (30) days
following the first anniversary on the commencement of such disability, MSS
shall sell and the Corporation shall purchase from him all shares of Class B
capital stock of the corporation then owned by him.
B. Upon any such sale, the price of the shares to be sold shall be
the value thereof as at the end of the month in which such disability shall have
commenced, as determined under paragraph "8" hereof "valuation date" and such
price shall be paid as provided in paragraph "9" hereof.
C. For the purposes of this agreement, the term "permanently
disabled" shall mean any physical or mental condition (i) which renders MSS
incapable of performing the duties pertaining to his employment by the
Corporation, (ii) which shall have endured for a period of at least twelve (12)
consecutive months, and (iii) which may reasonably be expected to be permanent.
In determining the nature, extent and continuation of such disability, the
Corporation may select a physician to examine MSS, and render to the Corporation
a medical opinion. The final determination of whether or not MSS is deemed to be
permanently disabled hereunder shall be made by CHB and JCB on the basis of all
the evidence available.
4. A. Subject to paragraph "6" hereof, upon the death of MSS his
personal representatives shall sell to the Corporation, and the Corporation
shall purchase from them, all of the shares of Class B capital stock owned by
MSS at the time of his death.
B. Upon any such sale, the price of the shares to be sold shall be
the value thereof as at the end of the month in which MSS's death shall occur,
as determined under paragraph "8" hereof, and such price shall be paid as
provided in paragraph "9" hereof.
5. A. Subject to paragraph "6" hereof, in the event MSS's employment by
the Corporation and all of its subsidiary or affiliated corporations shall be
terminated, for any reason whatsoever, MSS shall forthwith sell to the
Corporation, and the Corporation shall purchase from him, all of the shares of
Class B capital stock owned by MSS at the time of such termination.
B. Upon any such sale, the price of the shares to be sold shall be
the value thereof as at the end of the month in which MSS's employment shall
terminate, as determined under paragraph "8" hereof, and such price shall be
paid as provided in paragraph "9" hereof. Provided, however, that in the event
that within a period of eighteen (18) months following the termination of MSS's
employment, the Corporation shall enter into an agreement to be sold (whether by
merger, sale of all or substantially all of its assets, or otherwise), the price
of the shares sold hereunder shall be adjusted to equal the price which MSS
would have received for such shares had he owned them at the time the
Corporation is sold pursuant to such agreement.
6. MSS has executed an Assumption Agreement of even date herewith (a
copy of which is annexed hereto) in which he has agreed to be bound by certain
of the terms and conditions of a Shareholders Agreement of the Corporation dated
December 7, 1984, which provides, inter alia, that after the death of Xxxxxxx X.
Xxxxxxxx, all shares of Class B stock of the Corporation will be deposited in
escrow to secure certain payments to be made by the Corporation to the holders
of its preferred stock. Accordingly, notwithstanding the rights granted to MSS
pursuant to paragraphs "1", "2", "3", "4" and "5" hereof, MSS agrees that after
the death of Xxxxxxx X. Xxxxxxxx, he (or his personal representatives) will not
sell, assign, transfer, pledge, hypothecate, encumber or otherwise dispose of
any shares of Class B capital stock of the Corporation, except for depositing
such shares in escrow pursuant to subparagraph "8" of said Shareholders
Agreement dated December 7, 1984, until payment in full has been made by the
Corporation of all amounts payable to such preferred shareholders pursuant to
paragraph "8" of the said Shareholders Agreement dated December 7, 1984.
7. A. In the event that JCB shall die before December 7, 1989 and CHB
shall then survive, then
immediately following JCB's death, MSS shall exchange all shares of Class B
capital stock of the Corporation then owned by him for an equal number of shares
of Class D capital stock of the Corporation. Such exchange shall be made by MSS
delivering all his Class B shares to the Corporation, duly endorsed in blank for
transfer, within twenty (20) days after the death of JCB, and pending such
delivery, such Class B shares shall be deemed to have been exchanged for Class D
shares.
B. Following the exchange of MSS's Class B shares for Class D shares
as hereinabove provided, all of the provisions of this agreement that refer to
Class B shares owned by MSS shall thereafter apply to Class D shares owned by
MSS with like force and effect.
8. The price payable upon any sale pursuant to paragraphs "1", "2",
"3", "4" and "5" hereof, of any shares of Class B capital stock of the
Corporation shall be the agreed value thereof. The agreed value shall be such
amount as shall have been last fixed by the holders of all of the outstanding
shares of Class A and Class C capital stock prior to the valuation date
applicable to any such sale, pursuant to paragraph "5" of the Shareholders
Agreement dated December 7, 1984, a copy of which is annexed hereto. MSS agrees
that the determination of such value shall be made by the holders of Class A and
Class C capital stock without his participation. However, each time such value
is fixed, MSS shall be furnished with a copy thereof. The Class A and Class C
stockholders agree that in determining such value, (i) as at the end of any
fiscal year of the Corporation prior to December 7, 1989, they shall not reduce
the value last fixed by an amount greater than 20% of the reduction (if any) in
the book value of the Corporation from the end of the Corporation's prior fiscal
year to the end of its current fiscal year; and (ii) as at the end of any fiscal
year of the Corporation after December 7, 1989, such value shall be equal to the
book value of the Corporation. For purposes of this provision, the term "book
value" shall have the same meaning as set forth in paragraph "2.D" of the
Shareholders Agreement dated December 7, 1984.
9. Upon any sale to the Corporation of any shares of its Class B
capital stock pursuant to this agreement, the purchase price shall be paid to
the Seller as follows:
A. One-fourth (1/4) of the said purchase price shall be paid in
cash three (3) months after the valuation date applicable upon such sale, except
that any life insurance proceeds shall be applied as hereinafter provided.
B. The balance of the purchase price shall be paid nine (9)
months after the valuation date applicable upon such sale, without interest.
C. The proceeds of any life insurance which shall be received by
the Corporation on the death of MSS shall be applied by the Corporation in
payment of the purchase price not later than ten (10) days after such proceeds
are received by the Corporation. Any balance of the proceeds of insurance in
excess of the purchase price shall be retained by the Corporation for its
corporate purposes.
10. A. The Corporation shall have the right to procure and maintain
insurance on the life of MSS in an amount equal to the agreed value of the Class
B shares owned by MSS as fixed from time to time by the Capital Stockholders
pursuant to paragraph "9" hereof, and to pay premiums therefor so long as MSS
shall live and continue to own any shares of the Corporation. So long as the
Corporation shall own and maintain the said insurance, the Corporation shall be
designated as the beneficiary thereof.
B. Upon any sale by MSS of all of the shares of Class B capital
stock then owned by him, MSS shall have the option, provided that he shall have
given written notice to the Corporation of his intention to exercise the same
within fifteen (15) days prior to the consummation of such sale, to acquire from
the Corporation, and, in the event that he shall have given such notice, the
Corporation shall assign to him all of the policies of insurance owned and
maintained by the Corporation on his life. In the event that such notice shall
be given, the Corporation shall execute and deliver to MSS, at the time of such
sale, the said policies of insurance on his life,
subject to any loans outstanding against such policies, and any and all
instruments required to effectuate the assignment thereof to him, and he shall
pay to the Corporation an amount equal to the then cash surrender value (net of
any loans outstanding) of the said policies against the delivery of the said
policies and instruments of assignment.
11. The parties agree to make, execute and deliver any and all papers,
instruments and documents, and to do any and all acts, deed and things, which
may be necessary or proper to carry out the provisions of this Agreement, or to
effectuate the purposes thereof.
12. All written notices provided for herein shall be deemed sufficient
if served personally or by registered mail, addressed to the Corporation at its
principal place of business, or to any other party, at his address appearing on
the stock book of the Corporation.
13. If the then surplus of the Corporation shall be insufficient to
permit the Corporation to pay out of surplus any amount which shall be required
to be paid by the Corporation, in cash, on any such sale, then the undersigned
Class A, B and C stockholders agree to cause the Corporation, and the
Corporation agrees, to reduce its capital and create sufficient surplus to
enable the Corporation to pay any such amount out of surplus.
14. All certificates representing any shares of Class B capital stock
of the Corporation now owned, or at any time hereafter acquired by MSS, shall be
endorsed with the following legend:
This certificate, and the ownership thereof, shall be subject to
all of the terms and conditions of (i) a certain Agreement in writing, bearing
date the 29th day of December, 1987, made and entered into by and between the
Corporation, Xxxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxx; and
(ii) a certain Agreement in writing, bearing date the 7th day of December, 1984,
made and entered into by and between the Corporation and certain of its then
shareholders.
15. This Agreement contains all of the terms and conditions agreed upon
by the parties with respect to the matters herein provided for, and none of the
parties shall be bound by any representations, warranties, covenants or
conditions with respect thereto not expressly set forth herein. No modification
of this Agreement shall be binding, unless the same shall be in writing, and
signed by the parties.
16. This Agreement shall inure to the benefit of, and shall bind, the
respective personal representatives, successors and assigns of the parties.
17. The certain Shareholders Agreement in writing dated December 7,
1984 between the Corporation and certain of its shareholders shall remain in
full force and effect.
18. This Agreement shal1 be governed, construed and interpreted
according to the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have signed and sealed
these presents the day and year first above written.
PHILIPP BROTHERS CHEMICALS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, President
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
