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EXHIBIT 10
SPECIALTY CHEMICAL RESOURCES, INC.
$350,000
7 1/2% CUMULATIVE CONVERTIBLE PREFERRED STOCK
_____________________________________
STOCK PURCHASE AGREEMENT
_____________________________________
DATED AS OF OCTOBER 6, 1995
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SPECIALTY CHEMICAL RESOURCES, INC.
0000 XXXXXX XXXX XXXX
XXXXXXXXX, XXXX 00000-2013
Dated as of October 6, 1995
Xx. Xxxxx X. Xxxx
c/o Specialty Chemical Resources, Inc.
0000 Xxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Dear Xx. Xxxx:
The undersigned, Specialty Chemical Resources, Inc., a Delaware corporation
(herein called the "Company"), hereby agrees with you as follows:
1. AUTHORIZATION OF ISSUANCE OF SECURITIES BY THE COMPANY. The Company has
authorized the issuance and sale of 3,500 shares of its Preferred Stock, par
value $.01 per share, to be designated as the "7 1/2% Cumulative Convertible
Preferred Stock" (the "Preferred Stock"). The preferences, voting powers,
qualifications, limitations, restrictions and the special or relative rights
granted to or imposed upon the Preferred Stock are as set forth in the
Certificate of Powers, Designation, Preferences and Rights of the 7 1/2%
Cumulative Convertible Preferred Stock (the "Certificate of Designation"), a
copy of which is attached hereto as Exhibit A.
2. PURCHASE AND SALE OF SECURITIES.
(a) SECURITIES AND PURCHASE PRICE. On the terms and subject to the
conditions set forth below, the Company agrees to issue and sell to you, and
you agree to purchase from the Company, 3,500 shares of Preferred Stock to be
evidenced by one or more certificates registered in your name and in such
denominations as you shall request, at a purchase price of $100 per share.
(b) CLOSING. The purchase and delivery of the Preferred Stock to be
purchased by you shall take place simultaneously with your and the Company's
execution of this Agreement or at such other time and place as the parties
shall agree (the "closing date" or "date of closing"). At the closing, the
Company will deliver certificates representing the Preferred Stock to be
purchased by you, against payment of the aggregate purchase price therefor.
3. CONDITIONS OF CLOSING. Your obligation to purchase and pay for the
Preferred Stock on the date of closing is subject to the satisfaction on or
before the date of closing of the following conditions:
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(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Section 5 of this Agreement shall be true on and as of the date of
closing as if made on and as of such date.
(b) COMPLIANCE WITH THIS AGREEMENT. The Company shall have performed and
complied with all agreements and conditions contained herein which are required
to be performed or complied with by the Company before or at the closing.
(c) PURCHASE OF REAL ESTATE. The Company shall have secured the financing
necessary, together with the proceeds from the issuance of the Preferred Stock,
for its purchase of the real estate located at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxx and shall have entered into agreements that are satisfactory to you for
the purchase of same.
4. COVENANTS.
(a) FINANCIAL STATEMENTS AND REPORTS. The Company will deliver to you, so
long as you shall hold any Preferred Stock:
(i) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(ii) promptly upon the filing thereof, copies of all registration
statements and annual, quarterly or monthly reports that the Company or any
of its Subsidiaries shall have filed with the Commission;
(iii) promptly upon transmission thereof (but in any event within ten
days after transmission), copies of all press releases and other statements
made available generally by the Company or its Subsidiaries to the public
concerning material developments in the results of operations, financial
condition, business or prospects of the Company and its Subsidiaries; and
(iv) from time to time such additional information regarding the
financial positions, results of operations, business or prospects of the
Company or any of its Subsidiaries as you or any holder of Preferred Stock
may reasonably request.
(b) ACTIONS PENDING CLOSING. From the date hereof until the closing date,
the Company will not take any action the result of which would be to cause any
of the representations and warranties contained in Section 5 hereof to be
untrue, or any of the conditions of closing contained in Section 3 hereof to be
unsatisfied, on the closing date.
5. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to you
as set forth below:
(a) CORPORATE EXISTENCE AND POWER. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, has all corporate powers and all material
governmental licenses, authorizations,
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consents and approvals required to carry on its business as now conducted,
to enter into this Agreement and is duly qualified as a foreign corporation,
licensed and in good standing in each jurisdiction where qualification or
licensing is required by the nature of its businesses, or the character and
location of its property or businesses, except where the failure to be so
qualified would not have a material adverse effect on the Company.
(b) CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO CONTRAVENTION. The
execution and delivery by the Company of this Agreement and the Preferred Stock
and the performance by the Company of its obligations hereunder are within the
corporate powers of the Company, have been duly authorized by all necessary
corporate action and, as of the date of closing, will not contravene or
constitute (with or without the giving of notice or lapse of time or both) a
default under any material provision of applicable law or regulation or of the
certificate of incorporation or bylaws or any material agreement to which the
Company is a party.
(c) VALID AND BINDING OBLIGATIONS. At the date hereof and at the date of
closing, this Agreement constitutes and will constitute a legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms.
6. REPRESENTATIONS OF PURCHASER. You represent that you are an "accredited
investor" as such term is defined in 17 C.F.R. Section 230.501 (1986). You
represent, and it is specifically understood and agreed, that you are acquiring
the Preferred Stock for your own account for the purpose of investment and not
with a view to distribution of any thereof. You further represent that by
virtue of your position with the Company you are able to evaluate the risks of
purchasing the Preferred Stock.
7. RESTRICTIONS ON TRANSFER; REGISTRATION.
(a) RESTRICTIVE LEGEND. Except as otherwise permitted by this Section 7,
each certificate representing shares of Preferred Stock, and each certificate
issued upon the registration of transfer of any shares of such Preferred Stock
or the conversion of any shares of Preferred Stock into Restricted Common
Stock, shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933 and may not be transferred in the absence of
such registration or an exemption therefrom under such Act, except under
circumstances where neither such registration nor such an exemption is
required by law. Such securities may be transferred only upon the
fulfillment of the conditions specified in a certain Stock Purchase
Agreement, dated as of October 6, 1995, between Specialty Chemical Resources,
Inc., and the purchaser named therein. A complete and correct copy of the
form of such Agreement is available for inspection at the principal office of
such Corporation or at the office or agency maintained by such Corporation as
provided in such Agreement and will be furnished to the holder of such
securities upon written request and without charge."
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(b) NOTICE OF PROPOSED TRANSFER; OPINIONS OF COUNSEL. Subject to the
exception set forth in the last sentence of this Section 7(b), prior to any
transfer of any Preferred Stock or Restricted Common Stock, the holder thereof
will give written notice to the Company of such holder's intention to effect
such transfer and to comply in all other respects with this Section 7(b). Each
such notice (1) shall describe the manner and circumstances of the proposed
transfer in sufficient detail to enable counsel to render the opinions referred
to below, and (2) shall designate counsel for the holder giving such notice.
The holder giving such notice will submit a copy thereof to the counsel
designated in such notice and the Company will promptly submit a copy thereof
to its counsel. The following provisions shall then apply:
(i) If in the opinion of each such counsel the proposed transfer may be
effected without registration of such Preferred Stock or Restricted Common
Stock under the Securities Act, the Company will promptly notify the holder
thereof and such holder shall thereupon be entitled to transfer such
Preferred Stock or Restricted Common Stock in accordance with the terms of
the notice delivered by such holder to the Company. Each certificate issued
upon or in connection with such transfer shall bear the applicable
restrictive legend set forth in Section 7(a), unless in the opinion of each
such counsel such legend is no longer required to ensure compliance with the
Securities Act. If for any reason counsel for the Company (after having been
furnished with the information required to be furnished by clause (1) of this
Section 7(b)) shall fail to deliver a favorable or unfavorable opinion to the
Company, or the Company shall fail to notify such holder thereof as
aforesaid, within fifteen days after such holder shall have delivered to the
Company a copy of the opinion of counsel for such holder, then for all
purposes of this Agreement the opinion of counsel for such holder shall be
sufficient to authorize the proposed transfer and the opinion of counsel for
the Company shall not be required in connection with such proposed transfer;
and
(ii) If in the opinion of either or both of such counsel the proposed
transfer may not be effected without registration of such Preferred Stock or
Restricted Common Stock under the Securities Act, the Company will promptly
so notify the holder thereof and such holder shall not be entitled to
transfer such Preferred Stock or Restricted Common Stock until receipt of a
favorable opinion or opinions pursuant to the provisions of this Section 7(b)
or until registration of such Preferred Stock or Restricted Common Stock
under the Securities Act has become effective.
(c) INCIDENTAL REGISTRATION. In case the Company, at any time or from time
to time, proposes to register any of its securities under the Securities Act
(other than (1) a registration of securities solely in connection with any plan
for the acquisition of securities by employees of the Company or its
subsidiaries or any dividend reinvestment plan, (2) a registration of
securities when the registration statement therefor does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of Common Stock or (3) a registration
on Form S-4 or S-8), it will at each such time give written notice to all
holders of Restricted Common Stock of its intention to do so and, upon the
written request of any such holder made within thirty days after the receipt
of any
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such notice (which request shall specify the number of shares of Restricted
Common Stock intended to be disposed of by such holder and the intended method
of disposition thereof), the Company will, as provided in Section 7(d), use its
best efforts to effect, as expeditiously as possible, the registration under
the Securities Act of all Restricted Common Stock which the Company has been so
requested to register by the holders of the Restricted Common Stock, to the
extent requisite to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Restricted Common Stock so to be
registered, PROVIDED that:
(i) if, at any time after giving written notice of its intention to
register any securities and prior to or after the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to withdraw or
suspend the registration of such securities, the Company may, at its
election, give written notice of such determination to each holder of
Restricted Common Stock and, thereupon shall be relieved from its obligation
with respect to such registration (but not from its obligation to pay the
Registration Expenses in connection therewith);
(ii) if the Company's securities so registered for sale are to be
distributed in an underwritten offering and the managing underwriter shall
advise the Company in writing that, in its opinion, the amount of securities
to be offered should be limited in order to assure a successful offering, the
amount of securities to be included in such registration shall be so limited
and shall be allocated among the persons selling such securities, in the
following order of priority (with the effect that all securities of a
category below must be included in the registration before any securities of
a subsequent category below are included in the registration): (1) the
securities, if any, the Company proposes to sell and (2) the Restricted
Common Stock and the other securities requested to be included and having
similar rights, pro rata among the holders of such securities in proportion,
as nearly as practicable, to the amount of securities requested to be
registered by each of the holders of the Restricted Common Stock and such
other securities; and
(iii) if the securities or blue sky laws of any jurisdiction in which
the securities so registered are proposed to be offered would prohibit the
Company's payment of Registration Expenses attributable to the Restricted
Common Stock requested to be included in such registration, and if the
Company shall determine, in good faith, that the offering of such securities
in such jurisdiction is necessary for the successful consummation of the
registered offering, then the holders of Restricted Common Stock requested to
be included in such registration shall either agree to pay the portion of the
Registration Expenses attributable thereto, or withdraw their request for
inclusion of Restricted Common Stock in such registration.
Except as provided above, the Company will pay all Registration Expenses in
connection with each registration of Restricted Common Stock under this Section
7(c).
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(d) REGISTRATION PROCEDURES. If and whenever the Company is required to
use its best efforts to effect the registration of any Restricted Common Stock
under the Securities Act as provided in Section 8(c), the Company will promptly:
(i) prepare and (in any event within ninety days after the end of the
period within which requests for registration may be given to the Company)
file with the Commission a registration statement with respect to such
securities and use its best efforts to cause such registration statement to
become effective;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement until such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement, but in no event for a
period of more than six months after such registration statement becomes
effective;
(iii) furnish to each seller of such securities such number of conformed
copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits, except that the
Company shall not be obligated to furnish any seller of securities with more
than two copies of such exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary
prospectus and any summary prospectus), in conformity with the requirements
of the Securities Act, all documents filed and all correspondence dispatched
to or from the Commission in connection with such offering, and such other
documents, as such seller may reasonably request in order to facilitate the
disposition of the securities owned by such seller;
(iv) use its best efforts to register or qualify such securities
covered by such registration statement under such other securities or blue
sky laws of such jurisdictions as each seller shall reasonably request, and
do any and all other acts and things which may be necessary or advisable to
enable such seller to consummate the disposition in such jurisdictions of the
securities owned by such seller, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified, or to subject
itself to taxation in any such jurisdiction, or to consent to general service
of process in any such jurisdiction;
(v) notify each seller of any such securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or omits to state any material fact required to be stated therein or
necessary to make statements therein not misleading in the light of the
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circumstances then existing, and prepare and furnish to such seller a
reasonable number of copies of a supplement to, or an amendment of, such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing;
(vi) advise each seller as to the time when such registration statement
becomes effective and as to the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or the
institution of any proceedings for that purpose, and use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
the lifting thereof, if issued;
(vii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months, but not more than eighteen months,
beginning with the first month after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act;
(viii) furnish to each seller a signed counterpart of:
(1) an opinion of counsel for the Company addressed to the
sellers or, in the case of an underwritten public offering, to the
underwriter, dated the effective date of such registration statement,
and
(2) a "comfort letter" addressed to the underwriter signed by the
independent public accountants who have certified the Company's financial
statements included in such registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities, PROVIDED that the Company shall
not be obligated to furnish such accountants' letter except in connection
with an underwritten offering. The Company may require each seller of any
securities as to which any registration is being effected to furnish the
Company such information regarding such seller and the distribution of such
securities as the Company may from time to time request in writing and as
shall be required by law in connection therewith.
(e) TERMINATION OF RESTRICTIONS. The restrictions imposed by this Section 7
upon the transferability of Preferred Stock and Restricted Common Stock shall
cease and terminate as to any particular shares of Preferred Stock or
Restricted Common Stock (1) when such securities shall have been effectively
registered under the Securities Act and disposed of in accordance with the
registration statement covering such securities, or (2) when, in the
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opinion of both counsel for the holder thereof and counsel for the Company,
or when, in the opinion of either counsel for the Company or counsel for the
holder reasonably satisfactory to counsel for the Company on the basis of a
pertinent Commission rule or regulation promulgated under the Securities Act,
or a "no-action" letter addressed to either the holder thereof or the Company
from the staff of the Commission, such restrictions are no longer required in
order to ensure compliance with the Securities Act. Whenever such restrictions
shall terminate as to any shares of Preferred Stock or Restricted Common Stock
the holder thereof shall be entitled to receive from the Company, without
expense (other than transfer taxes, if any), new certificates representing such
shares of like tenor not bearing the applicable legend set forth in Section
7(a).
(f) Indemnification.
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(i) In the event of any registration of any Restricted Common Stock
under the Securities Act pursuant to Section 7(c), the Company will indemnify
and hold harmless the seller of such securities, its directors and officers,
each other Person who participates as an underwriter within the meaning of
the Securities Act, in the offering or sale of such securities and each other
Person, if any, who controls such seller or any such participating Person
against any losses, claims, damages or liabilities, joint or several, to
which such seller or any such director or officer or participating Person or
controlling Person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (1) any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or (2)
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and the Company will reimburse such seller and each such director, officer,
participating Person and controlling Person for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability or action, PROVIDED that the
Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement made in such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by
such seller specifically stating that it is for use in the preparation
thereof. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such seller or any such director,
officer, participating Person or controlling Person and shall survive the
transfer of such securities by such seller.
(ii) As a condition to including any Restricted Common Stock in any
registration statement filed pursuant to Section 7(c), the Company shall have
received an undertaking from the prospective seller of such securities to
indemnify and hold harmless the Company, each director of the Company, each
officer of the Company
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who shall sign such registration statement, each other Person, if any, who
controls the Company within the meaning of the Securities Act and each other
Person who participates as an underwriter within the meaning of the
Securities Act, with respect to any statement in such registration statement,
any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, if such statement was made in reliance upon
and in conformity with written information furnished to the Company through
an instrument duly executed by such seller specifically stating that it is
for use in the preparation of such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such
securities by such seller.
(iii) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in the
preceding paragraphs of this Section 7(f), such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party, give
prompt written notice to the latter of the commencement of such action,
PROVIDED that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under the
preceding paragraphs of this Section 7(f), except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, the
indemnifying party may (and, upon request by the indemnified party, will), at
its expense, participate in and assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and, in the event of any
failure by the indemnifying party diligently to assume and conduct such
defense, the indemnifying party will pay all costs and expenses (including
legal fees and expenses) incurred by such indemnified party in connection
with such claim or litigation. No indemnifying party, in the defense of any
such claim or litigation, shall, except with the consent of each indemnified
party, consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in
respect of such claim or litigation.
(iv) Indemnification similar to that specified in the preceding
paragraphs of this Section 7(f) (with appropriate modifications) shall be
given by the Company and each seller of Restricted Common Stock with respect
to any required registration or other qualification of such Restricted Common
Stock under any Federal or state law or regulation of governmental authority
other than the Securities Act.
(g) AVAILABILITY OF INFORMATION. If and so long as the Company is a Public
Company, the Company will comply with the reporting requirements of Sections 13
and 15(d) of the Exchange Act and will comply with all other public information
reporting requirements of the Commission (including the requirements of Rule
144 promulgated by the Commission under the Securities Act) from time to time
in effect and relating to the availability of an exemption from the Securities
Act for the sale of any restricted securities or the sale of
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securities by affiliates and will furnish on request a written statement as to
such compliance. The Company will also cooperate with each holder to complete
and file any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of an exemption from the
Securities Act for the sale of any restricted securities or the sale of
securities by affiliates. The Company will deliver to each holder of
Restricted Common Stock, promptly upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent or made
available generally by the Company to its stockholders, and copies of all
regular and periodic reports and all registration statements and prospectuses
filed by the Company with any securities exchange or with the Commission.
8. LISTING ON SECURITIES EXCHANGES. The Company will, at its expense, use its
best efforts to list on each national securities exchange (including NASDAQ) on
which any Common Stock shall at any time be listed, and will use its best
efforts to maintain such listing of, all shares of Restricted Common Stock
registered pursuant to the terms of this Agreement.
9. DAMAGES. The Company recognizes and agrees that the holder of Restricted
Common Stock will not have an adequate remedy at law if the Company fails to
comply with Sections 7(c), 7(d), 7(e), 7(g) and 8 and that a holder of
Restricted Common Stock will be entitled to an appropriate decree of specific
performance or other equitable remedies and that the Company waives the defense
in action or proceeding that there exists an adequate remedy at law.
10. DEFINITIONS.
(a) DEFINITIONS OF TERMS. For the purpose of this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Certificate of Designation" has the meaning set forth in Section 1 hereof.
The terms "closing date" and "date of closing" have the respective meanings
set forth in Section 2(c) of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commission" mean the Securities and Exchange Commission and any other
similar or successor agency of the Federal Government administering the
Securities Act or the Exchange Act.
"Common Stock" means the common stock of the Company, par value $.10.
"Company" has the meaning set forth in the first paragraph hereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any similar or successor Federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"GAAP" means generally accepted accounting principles in the United States
of America in effect from time to time.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Preferred Stock" has the meaning set forth in Section 1 hereof.
"Public Company" means the Company, if and so long as any class of the
Company's securities is registered pursuant to Sections 12(b) or 12(g) of the
Exchange Act.
"Registration Expenses" means all expenses related to the Company's
registration of Restricted Common Stock, including all expenses with respect to
the procedures set forth in Section 7(d) (other than underwriting discounts and
commissions and transfer taxes, if any, applicable to the Restricted Common
Stock and the fees and disbursements of counsel engaged by the holders to
register the Restricted Common Stock in any jurisdiction in which the Company
is not required to register such Common Stock pursuant to Section 7(d) hereof).
"Restricted Common Stock" means Common Stock received upon conversion of
Preferred Stock.
"Securities Act" means the Securities Act of 1933, as amended, and any
similar or successor Federal statute, and the rules and regulations of the
Commission thereunder, all as the same may be in effect at the time.
"Subsidiaries" means any corporation or other entity, a majority of the
then outstanding voting securities of which is owned, directly or indirectly,
by the Company or one or more of its Subsidiaries.
(b) ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made and all financial statements required to
be delivered hereunder shall be prepared in accordance with GAAP.
11. MISCELLANEOUS.
(a) HOME OFFICE PAYMENT. The Company agrees that, so long as you shall
hold any shares of Preferred Stock or Common Stock, it will make payments of
dividends on such shares not later than 11:00 a.m., your local time, to a place
within the United States, on the date such payment is due, in immediately
available funds, at your option, by credit to your
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account, as specified by you in writing, or by check mailed or delivered to
you at your address for payments specified by you in writing, or such other
account or address within the United States as you may from time to time
designate in writing. You agree that, before disposing of any Preferred Stock
or any Common Stock, you will notify the Company of the name and address of the
transferee of such Preferred Stock or Common Stock.
(b) Amendment and Waiver.
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(i) Any term, covenant, agreement or condition of this Agreement may be
amended, or compliance therewith may be waived (either generally or in a
particular instance and either retroactively or prospectively), by and only
by, one or more substantially concurrent written instrument(s) signed by the
holders of not less than 66 2/3% of the number of shares of Preferred Stock
outstanding or represented by shares of Preferred Stock outstanding or
represented by shares of Restricted Common Stock outstanding, PROVIDED,
HOWEVER, that no such amendment or waiver shall, without the consent in
writing of the holders of all such shares change the percentage of holders
required to approve any such amendment or effectuate any such waiver, and
PROVIDED FURTHER, that any amendment or waiver pursuant to this Section 11(b)
shall apply equally to all holders of shares of Preferred Stock or Restricted
Common Stock and shall be binding upon them and upon the Company.
(ii) The Company will give prompt notice to all holders of shares of
Preferred Stock or Restricted Common Stock of the proposal of any amendment
or waiver of any provision of this Agreement and of the effectiveness of any
amendment or waiver entered into in accordance with the provisions of this
Section 11(b). Such notices shall state the terms of any such amendment or
waiver and, in the case of effective amendments or waivers, shall be
accompanied by at least two conformed copies (which may be composite
conformed copies) of each written instrument which embodies such amendment or
waiver.
(c) EXCHANGE OF STOCK CERTIFICATES. Upon surrender of any certificate
representing shares of Preferred Stock or Restricted Common Stock for exchange
at the principal office of the Company, or at such other location as the
Company may designate to you in writing, the Company, at its expense (exclusive
of applicable transfer taxes), will issue in exchange therefor one or more new
certificates, in such denomination or denominations as may be requested, for
the same aggregate number of shares represented by the certificate so
surrendered, less that number of shares represented by such surrendered
certificate that have theretofore been redeemed, and registered as such holder
may request, each such new certificate to bear the legend set forth in Section
7(a), unless pursuant to the terms of this Agreement, such legend is no longer
required. The Company will also pay the cost of all deliveries of certificates
representing such shares from your office to the office of the Company
(including the cost of insurance against loss or theft in any amount
satisfactory to you) upon any exchange provided for in this Section 11(c).
(d) LOST, ETC, STOCK CERTIFICATES. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of any
certificate representing any
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of the shares of Preferred Stock or Restricted Common Stock held by you, and
(in case of loss, theft or destruction) of indemnity satisfactory to it, and
upon reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of such certificate, if mutilated,
the Company will make and deliver to you in lieu of such certificate a new
certificate of like tenor and for an equal number of shares, less that number
of shares represented by such lost, stolen, destroyed or mutilated certificate
that have theretofore been redeemed. Your agreement of indemnity in such a
form and of such a scope as are customary for such indemnities shall constitute
indemnity satisfactory to the Company for the purposes of this Section 11(d).
(e) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained herein or made in writing by or on behalf of any party to
this Agreement in connection herewith shall survive the execution and delivery
of this Agreement and the issuance and delivery of the Preferred Stock
regardless of any investigation made by you or on your behalf.
(f) SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
all covenants and agreements in this Agreement contained by or on behalf of any
of the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto, whether so expressed or not,
except that the Company may not assign or transfer any of its rights or
obligations under this Agreement. When any reference is made to "you" in
Sections 2, 3, 4, 5, 6, 7 and 11 this Agreement, such reference shall be deemed
to include and inure to the benefit of, any Person who shall become the
registered holder of any shares of Preferred Stock or Restricted Common Stock
upon transfer thereof; provided that (1) such shares were acquired from you by
such Person directly or indirectly in a transaction or chain of transactions
not involving a public offering, and (2) notice in writing of such transfer is
received by the Company.
(g) NOTICES. All communications provided for hereunder shall be sent by
registered mail and, if to you, addressed to you at the address set forth by
you for such communications under your name on the signature page of this
Agreement, or to such other address as you may have designated to the Company
in writing, if to any other holder of Preferred Stock or Restricted Common
Stock, at the registered address of such holder as set forth in the stock
record books of Company, and if to the Company, addressed to it at the address
set forth on the first page hereof or to such other address or addresses as the
Company may have designated in writing to you and each other holder of any of
the Preferred Stock or Restricted Common Stock at the time outstanding. All
communications provided for shall be effective five days after such
communication is deposited in the mail with registered postage prepaid,
addressed as aforesaid.
(h) DESCRIPTIVE HEADINGS. The descriptive headings contained in this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
(i) GOVERNING LAW; NO ORAL MODIFICATION. This Agreement is being delivered
and is intended to be performed in the State of Ohio, and shall be construed
and enforced in accordance with, and the rights of the parties shall be
governed by, the law of such State.
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This Agreement may not be changed orally, but (subject to the provisions of
Section 11(b) hereof) only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification or discharge is
sought.
(j) COUNTERPARTS. This Agreement may be executed simultaneously in two
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
If you are in agreement with the foregoing, please sign the form of
acceptance where provided below and return the same to the undersigned,
whereupon this letter shall become a binding agreement between you and the
undersigned.
Very truly yours,
SPECIALTY CHEMICAL RESOURCES, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Its: Vice President, Treasurer and
------------------------------------
Assistant Secretary
The foregoing Agreement is hereby
accepted as of the date first above
written.
Xxxxx X. Xxxx
-----------------------------------
Xxxxx X. Xxxx
___________________________________
___________________________________
______________________, Ohio ________
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SPECIALTY CHEMICAL RESOURCES, INC.
Stock Purchase Agreement
September 28, 1995 - 7:57 pm - KTM
CLE1 - 181863.1A - 15179\87
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