EXHIBIT 10.1
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "Agreement") is made and entered into as
of September 26, 1997 by and among Huntsman Corporation, a Utah corporation
(the "Company"), Xxx X. Xxxxxxxx ("Xxxxxxxx") and Xxxxxxx X. Xxxxxx and
Xxxxxxxxx X. Xxxxxxxx, as Successor Trustees (the "Trustees") of The Xxxxxxxxx
Xxxxx X. Xxxxxx Trust (the "Trust").
Recitals
A. The Company owns all of the issued and outstanding shares of the
capital stock of Huntsman Packaging Corporation, a Utah corporation
("Packaging").
B. Packaging will amend its Articles of Incorporation to provide for
two classes of stock, Class A Common Stock ("Packaging A Stock") and Class B
stock ("Packaging B Stock") and Class B Common Stock ("Packaging B Stock"), and
the issued shares of the capital stock of Packaging will be reclassified as
995,001 shares of Packaging A Stock and 4,999 shares of Packaging B Stock
(the "Packaging Recapitalization").
X. Xxxxxxxx is the record and beneficial owner of 14,172,343 shares of
the Common Stock of the Company ("Company Common Stock").
D. The Trustees are the record owners, and the Trust is the beneficial
owner, of 561,021 shares of Company Common Stock.
E. The shareholders of the Company desire that, following the
Packaging Recapitalization, the Company shall distribute all of the issued
Packaging A Stock and Packaging B Stock (collectively, the "Packaging Shares")
to Huntsman and the Trustees, for the benefit of the Trust, (collectively, the
"Shareholders") in exchange for (i) 1,041,896 shares of Company Common Stock
owned by Huntsman and (ii) all 561,021 of the shares of Company Common Stock
owned by the Trustees for the benefit of the Trust (collectively, the "Exchange
Shares") in a tax-free transaction under Section 355 of the Internal Revenue
Code of 1986, as amended (the "Code").
F. This Agreement sets forth the terms and conditions upon which the
exchange of the Packaging Shares for the Exchange Shares (the "Exchange") shall
occur.
Agreement
NOW, THEREFORE, intending to be legally bound by this Agreement, the
Company and the Shareholders (collectively, the "Parties") agree as follows:
1. Packaging Recapitalization. On or before September 29, 1997, the
Company shall cause Packaging to complete the Packaging Recapitalization.
2. Exchange. At the Closing (as defined below), upon the terms and
subject to the conditions of this Agreement, (a) the Company shall distribute,
assign, transfer and deliver all of the Packaging Shares to the Shareholders,
and the Shareholders shall receive, acquire and accept all of the Packaging
Shares from the Company as set forth in paragraph 5 below, and (b) the
Shareholders shall assign, transfer and deliver all of the Exchange Shares to
the Company, and the Company shall receive, acquire, accept and redeem all of
the Exchange Shares from the Shareholders.
3. Closing. The Exchange shall close (the "Closing") at the offices of
the Company (a) within thirty (30) days after the completion of the Packaging
Recapitalization, or (b) at such other time or place as the Parties may agree.
4. Closing Obligations. At the Closing, the following shall occur:
(a) The Shareholders shall deliver the certificates representing the
Exchange Shares, duly endorsed for redemption by the Company.
(b) The Company shall deliver the certificates representing the
Packaging Shares, duly endorsed for cancellation, to Packaging with
instructions to Packaging to issue certificates for the Packaging Shares to
the Shareholders in accordance with paragraph 5 below.
5. Ownership of Packaging Shares. Immediately after the Closing,
(a) Huntsman shall own 650,000 shares of Packaging A Stock, and
(b) the Trustees shall own 345,001 shares of Packaging A Stock and
4,999 shares of Packaging B Stock.
6. Cancellation of Exchange Shares. Immediately after the Closing, the
Exchange Shares shall be canceled by the Company and shall be authorized and
unissued shares of Company Common Stock.
7. Acceptance of Consideration. The Company accepts, and hereby agrees
that, the receipt by it of the Exchange Shares, as provided for in this
Agreement, constitutes payment in full and is the sole consideration for the
distribution, assignment, transfer and delivery of the Packaging Shares by the
Company to the Shareholders. The Shareholders accept, and hereby agree that,
the receipt by them of the Packaging Shares, as provided
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for in this Agreement, constitutes payment in full and is the sole
consideration for the assignment, transfer and delivery of the Exchange Shares
by the Shareholders to the Company.
8. Representations and Warranties of the Company. As of the Closing,
the Company hereby represents and warrants to the Shareholders as follows:
(a) Packaging is a corporation duly organized, validly existing and
in good standing under the laws of the State of Utah.
(b) All of the Packaging Shares are directly owned, beneficially and
of record, by the Company.
(c) The Company has the right, without obtaining the consent of any
other person or governmental authority, to distribute, assign, transfer
and deliver the Packaging Shares to the Shareholders in accordance with
this Agreement.
(d) Each of the Packaging Shares is validly issued, fully paid and
nonassessable.
(e) There are no obligations, agreements, contracts, subscriptions,
options, warrants, rights, convertible or exchangeable securities, calls,
pledges, hypothecations, loans, security interests, notes, trust deeds,
mortgages, liens, charges, claims, judgments, limitations, restrictions,
commitments or other encumbrances (collectively, "Encumbrances") created
by the Company on or with respect to any of the Packaging Shares. None of
Packaging Shares was issued in violation of the preemptive rights of any
person. There are no voting trusts or other agreements, arrangements or
understandings with respect to the voting of the Packaging Shares.
9. Representations and Warranties of the Shareholders. As of the
Closing, each Shareholder, solely with respect to the Exchange Shares owned by
such Shareholder, hereby represents and warrants to the Company as follows:
(a) The Exchange Shares are directly owned by the Shareholder.
(b) The Shareholder has the right, without obtaining the consent of
any other person or governmental authority, to assign, transfer and
deliver the Exchange Shares to the Company in accordance with this
Agreement.
(c) There are no Encumbrances created by the Shareholder on or with
respect to the Exchange Shares. The Shareholder has not created or
otherwise established any voting trusts or other agreements, arrangements
or understandings with respect to the voting of the Exchange Shares.
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10. Tax Consequences. The Parties intend that the Exchange shall
qualify as a nontaxable transaction under Section 355 of the Code. This
Agreement shall be strictly interpreted to assure such qualification.
11. General Provisions. The Parties further agree as follows:
(a) All of the terms of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the Parties and their
respective successors, assigns, heirs and legal representatives.
(b) This Agreement supersedes all prior agreements and/or
understandings of the Parties on the subject matter hereof. Any prior
negotiations, correspondence, agreements, proposals, understandings or
discussions relating to the subject matter of this Agreement shall be
deemed to be merged into this Agreement and, to the extent inconsistent
with this Agreement, such negotiations, correspondence, agreements,
proposals, understandings or discussions shall be deemed to be of no force
or effect.
(c) There are no representations, warranties or agreements, whether
express or implied, oral or written, with respect to the subject matter of
this Agreement except as expressly set forth in this Agreement.
(d) This Agreement may not be modified by any oral agreement, either
express or implied, and all modifications hereto shall be in a written
document, signed by the Parties.
(e) Paragraph headings in this Agreement are for the purpose of
convenience only and shall not limit or otherwise affect any of the terms
hereof.
(f) Should any Party default in or be in breach of any of the
covenants or agreements contained in this Agreement, or in the event a
dispute shall arise as to the meaning of any term of this Agreement, the
breaching or defaulting Party, or the non-prevailing Party, as the case
may be, shall pay all costs and expenses, including reasonable attorneys'
fees, that may arise or accrue from enforcing this Agreement, securing an
interpretation of any provision of this Agreement, or in pursuing any
remedy provided by applicable law, whether such remedy is pursued or
interpretation is sought by the filing of a lawsuit, an appeal, and/or
otherwise.
(g) Whenever the context requires, the singular shall include the
plural, the plural shall include the singular, the whole shall include any
part thereof, and any gender shall include all other genders.
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(h) The Parties shall pay all their own costs and expenses (including
attorneys' fees and accountants' fees) incurred or to be incurred by them in
negotiating and preparing this Agreement and in carrying out the transactions
contemplated by this Agreement.
(i) None of the rights, duties, or obligations under this Agreement of
any Party may be assigned, delegated, or transferred expressly by operation of
law (including, but not limited to, a merger or consolidation), or otherwise,
without the prior written consent of the other Parties, which consent shall not
be unreasonably withheld or delayed.
(Signature Page Follows)
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IN WITNESS WHEREOF, the Company and the Shareholders have executed
this Agreement on the day and year first above written.
The Company: Huntsman Corporation, a Utah
corporation
------------------------------------------
Xxxxx X. Xxxxxxxx
President and Chief Operating
Officer
Attest:
/s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
Secretary
The Shareholders:
/s/ Xxx X. Xxxxxxxx
------------------------------------------
Xxx X. Xxxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx
Successor Trustee of
The Xxxxxxxxx Xxxxx X. Xxxxxx
Trust
/s/ Xxxxxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Successor Trustee of
The Xxxxxxxxx Xxxxx X. Xxxxxx
Trust
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IN WITNESS WHEREOF, the Company and the Shareholders have executed
this Agreement on the day and year first above written.
The Company: Huntsman Corporation, a Utah
corporation
/s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxx
President and Chief Operating
Officer
Attest:
/s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
Secretary
The Shareholders:
------------------------------------------
Xxx X. Xxxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx
Successor Trustee of
The Xxxxxxxxx Xxxxx X. Xxxxxx
Trust
/s/ Xxxxxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Successor Trustee of
The Xxxxxxxxx Xxxxx X. Xxxxxx
Trust
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IN WITNESS WHEREOF, the Company and the Shareholders have executed
this Agreement on the day and year first above written.
The Company: Huntsman Corporation, a Utah
corporation
------------------------------------------
Xxxxx X. Xxxxxxxx
President and Chief Operating
Officer
Attest:
/s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
Secretary
The Shareholders:
/s/ Xxx X. Xxxxxxxx
------------------------------------------
Xxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx
Successor Trustee of
The Xxxxxxxxx Xxxxx X. Xxxxxx
Trust
/s/ Xxxxxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Successor Trustee of
The Xxxxxxxxx Xxxxx X. Xxxxxx
Trust
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