EXHIBIT 10.18
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR ANY APPLICABLE STATE SECURITIES LAWS AND
ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND FROM EXEMPTIONS FROM REGISTRATION UNDER
APPLICABLE STATE SECURITIES LAWS. THE TRANSFER OF THESE SECURITIES IS RESTRICTED
BY SUCH LAWS AND THE TERMS OF THIS AGREEMENT AND MAY NOT BE SOLD, OFFERED,
TRANSFERRED OR OTHERWISE DISPOSED OF FOR VALUE EXCEPT PURSUANT TO REGISTRATION
UNDER THE SECURITIES ACT AND SUCH STATE LAWS AS MAY BE APPLICABLE, OR AN
EXEMPTION THEREFROM TOGETHER WITH AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER FEDERAL OR
STATE AGENCY OR AUTHORITY HAS PASSED ON, RECOMMENDED OR ENDORSED THE MERITS OF
THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
PENNSYLVANIA SECURITIES LAWS GENERALLY PROHIBIT PENNSYLVANIA RESIDENTS FROM
SELLING THESE SECURITIES FOR A MINIMUM OF TWELVE MONTHS AFTER THE DATE OF
PURCHASE.
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PURCHASE AGREEMENT
BETWEEN
CHEMICAL XXXXXX CORPORATION
AND
XXXXXXXX X. XXXXX-XXXXXX
SEPTEMBER 10, 1996
================================================================================
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated September 10, 1996, is by and between
CHEMICAL XXXXXX CORPORATION, a Pennsylvania corporation with offices at 000
Xxxxxxxxx Xxx, Xxxxx, XX 00000-0000 (the "Company") and Xxxxxxxx X.
Xxxxx-Xxxxxx, an individual residing in the State of Massachusetts (the
"Consultant").
BACKGROUND
Consultant desires to purchase 34.875 shares of the common stock of the
Company, par value $2.50 per share (the "Shares") from the Company and the
Company desires to sell the Shares to Consultant, and in connection therewith,
the Company and Consultant each desire to set forth certain limitations relating
to the Shares, any other securities of the Company or any of its subsidiaries or
affiliates (the "Affiliated Securities") and any Rights (as defined in Section 7
hereof) relating to securities of the Company or any of its subsidiaries or
affiliates (collectively, the "Company Affiliates") held by Consultant, all upon
the terms and subject to the conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. Purchase and Sale of the Shares. Subject to the terms and conditions set
forth herein, Consultant hereby subscribes for and agrees to purchase from the
Company and the Company hereby agrees to sell to Consultant, on the date hereof,
the Shares.
2. Purchase Price. As full payment for the Shares, on the date hereof,
Consultant shall pay to the Company an amount equal to Six thousand dollars
($6,000.00) per Share, for an aggregate purchase price of Two hundred nine
thousand two hundred fifty dollars ($209,250.00) (the "Purchase Price") by the
delivery to the Company of a promissory note in the aggregate principal amount
of $209,250.00 in substantially the form attached hereto as Exhibit A (the
"Note"). Notwithstanding anything herein contained to the contrary, Consultant
shall only be personally liable under the Note and this Section 2 to the extent
set forth in Paragraph 5 of the Note.
3. Gross-Up Bonus. For so long as Consultant is retained by the Company or
is a member of the Board of Directors of the Company, on the date that an
interest payment is due and is paid to the Company under the Note, the Company
shall pay to Consultant, contemporaneously with the payment of such interest
payment, a bonus (the "Bonus") in an amount equal to (i) the amount of such
interest payment, plus (ii) the amount required to enable Consultant to pay any
Federal, state or other applicable taxes on such Bonus.
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4. Representations and Warranties of the Company. The Company represents
and warrants as follows:
a. The Company is a corporation duly organized, validly existing, and
in good standing under the laws of the Commonwealth of Pennsylvania, and
has full corporate power and authority to carry on its business as it is now
being conducted and to own and operate the properties and assets now owned and
operated by it.
b. The Company has the power and authority to execute, deliver and
perform this Agreement. The Agreement is a valid and binding obligation of
the Company, enforceable in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, moratorium, or
similar laws affecting the enforcement of creditors' rights generally.
c. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby and thereby do not and will
not contravene any provision of the Articles of Incorporation or Bylaws of the
Company; nor violate, be in conflict with, or constitute a default under, cause
the acceleration of any payments pursuant to, or otherwise impair the good
standing, validity or effectiveness of any agreement, contract, indenture,
lease, or mortgage, or subject any property or asset of the Company to any
indenture, mortgage, contract, commitment, or agreement, other than this
Agreement, to which the Company is a party or by which the Company or any of its
assets is bound; or violate any provision of law, rule, regulation, order,
permit, or license to which the Company is subject.
d. Upon issuance thereof, the Shares will be validly issued and
outstanding, fully paid and nonassessable, not subject to preemptive or any
other similar rights of the shareholders of the Company or others and will be
free and clear of any and all liens and encumbrances (except for any
restrictions imposed by this Agreement, by the Applicable Laws (as hereinafter
defined) or by the Securities Act of 1933, as amended (the "Securities Act").
5. Representations and Warranties of the Consultant. The Consultant hereby
represents, warrants, acknowledges and/or agrees as follows:
a. The Consultant is acquiring the Shares solely for his own account,
for investment purposes, and not with a view to resale or distribution of
all or any part thereof. The Consultant has no present arrangement,
understanding or agreement for transferring or disposing of all or any part of
the Shares. The Consultant will not sell, transfer or otherwise dispose of any
of his Shares, in any manner, unless at the time of any such transfer: (a) a
Registration (as hereinafter defined) under the Securities Act and under the
Applicable Laws is in effect with respect to the Shares to be sold, transferred
or disposed of, and the Consultant complies with all of the requirements of the
Securities Act and the Applicable Laws with respect to the proposed transaction;
or (b) the Consultant has obtained and has provided to the Company an opinion
from counsel reasonably satisfactory to the Company (as to both the
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counsel rendering such opinion and the substance of the opinion) that the
proposed sale, transfer or disposition does not require Registration under the
Securities Act or the Applicable Laws. As used herein: the term "Registration"
means registration under the Securities Act and, with respect to the Applicable
Laws, such registration thereunder (or, with respect to any of the Applicable
Laws which do not provide for registration, such compliance therewith which is
similar to registration) which has then resulted in statutory or administration
authorization for the proposed transaction; and the term "Applicable Laws" means
any applicable state securities laws and any other applicable law.
b. The Consultant has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of an
investment in the Shares and to form an investment decision with respect
thereto. Prior to the execution of this Agreement, the Consultant and his
advisers, if any, have received and carefully read the Company's current
quarterly and last annual audited financial statements. The Consultant and his
advisers, if any, have also made such other investigation, review, examination
and inquiry concerning the Company and its business and affairs as they have
deemed appropriate; and the Consultant and his advisers, if any, have been
offered the opportunity to ask such questions and obtain such additional
information concerning the Company and its business and affairs as they have
requested so as to understand the nature of the investment in the Shares,
including, without limitation, the merits and risks thereof, and to verify the
accuracy of the information obtained as a result of such investigation.
c. The Consultant has received and carefully read the Company's
financial statements for the years ended December 31, 1996 and December 31,
1995. Other than as may be set forth herein, the Consultant has not received any
other written material or oral representation of any person with respect to the
Company or this Agreement. Further, the Consultant has had the opportunity to
ask questions of, and receive answers from, officers and directors of the
Company and persons acting on its behalf concerning the terms and conditions of
this Agreement. The Consultant has received sufficient information relating to
the Company to enable her to make an informed decision with respect to
Consultant's investment in the Company.
d. The Consultant has adequate net worth and means of providing for his
current needs and personal contingencies and can afford to sustain a complete
loss of the Consultant's investment in the Company. The Consultant recognizes
that an investment in the Company is speculative and involves certain risks, and
the Consultant has taken full cognizance of and understands and can evaluate all
of the risks of the investment in the Shares. The Consultant acknowledges that
these risks include, without limitation, the following:
(1) The Company and its operations are subject to all the risks
inherent in the establishment and growth of a business in the trucking industry.
The likelihood of the success of the Company must be considered in light of the
problems, complications and delays frequently encountered in connection with the
trucking industry. There can be no assurance that the Company will operate at a
profit.
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(2) The Shares represent a minor portion of the outstanding capital
stock of the Company. Thus, it can be expected that the current majority owners,
by virtue of their percentage share ownership, will continue to have the
unrestricted ability to determine the composition of the Board of Directors and
the policies of the Company.
(3) It is highly unlikely that dividends will be paid with respect to
the Shares. Moreover, there can be no assurance that the operations of the
Company will generate sufficient revenues to enable the Company to declare or
pay dividends on or make distributions with respect to the Shares, or that such
dividends shall be permitted by the terms of the Company's credit facility with
its senior lender.
(4) The Consultant recognizes that:
(a) The existing shareholders of the Company (i.e., those who have
been issued capital stock prior to the date hereof) have paid different amounts
per share for their shares of common stock.
(b) The Company does not represent nor has it been implied that
any of the Shares can be resold at the offering price.
(c) The Consultant acknowledges that no Federal, state or foreign
agency has passed upon, approved, recommended or endorsed the merits of the
Shares for investment, or for any other purpose.
e. The Consultant understands that the Shares are being offered and sold
in reliance on specific exemptions from the registration requirements of Federal
and state law and that the Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings set
forth herein in order to determine the applicability of such exemptions and the
suitability of the Consultant to acquire the Shares.
f. The Consultant understands that (i) there is no established market
for the Shares, nor is any such market expected to develop, and (ii) neither the
Company nor any other person has any obligation or intention to effect the
Registration of the Consultant's Shares for sale, transfer or disposition by the
Consultant under the Securities Act or the Applicable Laws, or to take any
action or provide any information (including, without limitation, the filing of
reports or the publication of information required by Rule 144 under the
Securities Act) which would make available any exemption from the Registration
requirements of the Securities Act or the Applicable Laws. The Consultant must
therefore hold his Shares indefinitely unless a subsequent Registration or
exemption therefrom is available and is obtained.
g. The Consultant understands that he is not entitled to cancel,
terminate or revoke this subscription, except as may otherwise be set forth in
this Section 5.
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h. (1) If the Consultant is a Massachusetts resident, the Consultant has
received and read the notice of his right to withdraw under certain
circumstances his subscription for Shares hereunder. The Consultant represents
that he understands that, in accepting an offer made pursuant to this Agreement
to purchase Shares hereby, the Consultant may elect, within two business days
after the Company is in receipt of this executed Agreement, to withdraw from the
Agreement and receive a full refund of all monies paid for the Shares. Such
withdrawal will be without any further liability to the Consultant. To
accomplish this withdrawal, the Consultant need only send a letter or a telegram
to the Company indicating his intention to withdraw. If a letter is sent, the
Consultant understands that it should be sent by registered or certified mail,
return receipt requested, to ensure that it is received and also to evidence the
date on which it is mailed. If the Consultant orally requests to withdraw, he
should ask for written confirmation that the request has been received.
(2) The Consultant also agrees that he will not sell any of the
Shares acquired hereby within twelve months from the date of purchase
except in accordance with the requirements of the Pennsylvania Securities Act of
1972, as amended, as well as the Securities Act.
i. No broker or finder has acted for the Consultant in connection with
his purchase of the Shares and no broker or finder is entitled to any broker's
or finder's fees or other commissions in connection therewith based on
agreements between the Consultant and any broker or finder.
j. The Consultant is a resident of the State of Massachusetts. If an
individual, the Consultant is a citizen of the United States of America, is at
least 21 years of age, and has the legal capacity to execute, deliver and
perform this Agreement.
k. All information which the Consultant has provided to the Company
concerning such Consultant, such Consultant's financial position and such
Consultant's knowledge of financial and business matters, including all
information contained herein, is true and complete as of the date hereof.
1. Appropriate restrictive endorsement(s) will be placed upon the
certificates evidencing the Shares subscribed to hereby to reflect the foregoing
and that the Company will give appropriate stop transfer instructions to the
person(s) in charge of the transfer of the Consultant's Shares.
6. Restrictive Legend. Stock Certificates representing the Shares issued
to the Consultant pursuant hereto shall bear the following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
PLEDGED, HYPOTHECATED, SOLD
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OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE
SECURITIES LAWS OR A SATISFACTORY OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH PLEDGE, HYPOTHECATION, SALE OR TRANSFER IS EXEMPT
THEREFROM UNDER ANY SUCH ACT AND APPLICABLE STATE SECURITIES LAWS.
THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES BY
ACCEPTANCE HEREOF THAT SUCH HOLDER WILL NOT SELL ANY OF SUCH SECURITIES
WITHIN TWELVE MONTHS FROM THE DATE OF THE PURCHASE THEREOF EXCEPT IN
ACCORDANCE WITH THE REQUIREMENTS OF THE PENNSYLVANIA SECURITIES ACT OF
1972, AS AMENDED.
7. Termination of Options. Warrants and other Rights. Consultant hereby
cancels and terminates in all respects any and all Rights that may be held by
Consultant on the date hereof (collectively, the "Terminated Rights"). On the
date hereof, Consultant has delivered to the Company for cancellation any
original documents in Consultant's control or possession evidencing or
representing any such Terminated Rights. Consultant hereby releases the Company,
the Company Affiliates, their respective directors, officers, employees and
agents, and their respective successors and assigns, from any liability to
Consultant whatsoever relating to, arising out of, or in connection with, such
Terminated Rights. The foregoing provisions shall not be construed to limit the
ability of the Company to grant or issue to Consultant, after the date hereof,
any similar rights to acquire any capital stock or other securities of the
Company and/or the Company Affiliates, including options or warrants. For
purposes of this Agreement, "Rights" shall mean any contracts, subscriptions,
calls, rights to convert, commitments or rights of any character or kind,
including without limitation, options or warrants, to purchase or otherwise
acquire or to require the Company and/or the Company Affiliates, to issue any
capital stock or other securities of the Company and/or any other Affiliated
Securities.
8. Mandatory Company Obligation to Repurchase Shares at Premium On
Occurrence of Certain Events.
a. In the event (i) that the Consultant shall die ("Death"), or the
disability of the Consultant such that Consultant is unable to perform his or
her duties and responsibilities to the Company or any Company Affiliate to the
full extent required by reasons of illness, injury or incapacity for a period of
more than one hundred twenty (120) consecutive days or more than two hundred
seventy (270) days, in the aggregate, during any three hundred sixty-five (365)
day period ("Disability"), ( (Death and Disability, collectively the "Section 8
Events"), the Company shall (unless otherwise prevented by law) redeem all of
the Shares owned by the Consultant at the time of such Section 8 Event. The
purchase price for the Shares so redeemed pursuant to the provisions of this
Section 8 shall be equal to the greater of (x) the price paid for such Shares by
the Consultant, and (y) the fair market value of such Shares, which shall be
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mutually agreed upon by the Consultant and Company; provided that, in
the event the Consultant and Company cannot agree upon the fair market value for
such Shares within thirty (30) days following the Section 8 Event in question,
the fair market value of such Shares shall be determined by appraisal (pursuant
to Sections 8(b) and 8(c) hereof).
b. Such appraisal shall be conducted by an independent investment
banking firm engaged by Company and agreed upon by the Consultant (or
Consultant's personal representative or executor, if applicable); provided,
however, that if the Company and Consultant (or Consultant's personal
representative or executor, if applicable) cannot agree on an appraiser within
forty (40) days following the Section 8 Event in question, each of the Company
and Consultant (or Consultant's personal representative or executor, if
applicable) shall within five (5) days thereafter select one appraiser, and such
appraisers shall mutually agree within forty-five (45) days thereafter upon the
value of such Shares; and further provided, if such appraisers cannot mutually
agree upon the value of such Shares, the appraisers shall (on or prior to such
forty-fifth (45th) day) mutually agree upon a third appraiser, which third
appraiser shall determine, in its sole discretion, the value of such Shares. The
Company shall be responsible for all of the costs of such appraisal. Any time
periods set forth in this Section 8 shall be adjusted in order to account for
any delay caused by such appraisal.
c. If the determination of the fair market value of the Shares by the
appraiser(s) depends on or takes into account the net income or projected net
income of the Company for any prior or future period, the appraiser(s) shall be
directed to exclude from such net income or projected net income any amounts
paid or projected to be paid to or for the benefit of Xxxxx X. Xxxxxxxx and to
Xxxxxx XxXxxxxx in excess of their base salary and consulting fees and other
base compensation, if any.
d. Settlement for the purchase of such Shares by the Company pursuant to
this Section shall be made within one (1) year following the date of the Section
8 Event, unless the Company for any reason is legally prohibited from redeeming
any of those Shares, in which case the Company shall thereafter redeem such
shares on the earliest date(s) on which the Company is no longer so prohibited
from redeeming such Shares, or unless the Company has not obtained all required
third party consents to such purchase, in which case settlement shall occur as
promptly as practicable following the date that the Company shall obtain such
consents. The Company hereby agrees to use its best efforts to obtain all such
requisite third party consents. All settlements for the purchase and sale of
such Shares shall, unless otherwise agreed to by the Company and Consultant (or
Consultant's personal representative or executor, if applicable), be held at the
principal offices of the Company during regular business hours. The precise date
and hour of settlement shall be fixed by the Company (within the time limits
allowed by the provisions of this Section) by notice in writing to Consultant
(or Consultant's personal representative or executor, if applicable) given at
least five (5) days in advance of the settlement date specified. At settlement,
the Shares being sold shall be delivered by Consultant (or Consultant's personal
representative or executor, if applicable) to the Company, duly
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endorsed for transfer or with executed stock powers attached, with any
necessary documentary and transfer tax stamps affixed by Consultant.
9. Mandatory Company Obligation to Repurchase Shares at Premium On
Occurrence of Other Events.
a. In the event that (i) the Consultant voluntarily terminates his
consulting arrangement with the Company or a Company Affiliate and resigns as a
member of the Board of Directors of the Company, as the case may be (except as
set forth in Section 10 below) or (ii) the Consultant's consulting arrangement
is terminated by the Company without Cause (as defined below) and Consultant's
position as a member of the Board of Directors of the Company is terminated by
the Company (any of the foregoing, a "Section 9 Event"), the Company shall
(unless otherwise prevented by law), redeem up to all of the Shares owned by the
Consultant at the time of such Section 9 Event. The purchase price for any
Shares redeemed pursuant to the provisions of Section 9(a)(i) hereof shall be
equal to (x) the greater of the price paid by the Consultant for each such
Share, and (y) an amount equal to two-thirds of the fair market value of such
Shares (as determined in accordance with the provisions of Section 8 hereof).
The purchase price for any Shares redeemed pursuant to the provisions of Section
9(a)(ii) hereof shall be equal to the greater of (r) the price paid by the
Employees for each such Share, and (s) the fair market value of such Shares (as
determined in accordance with the provisions of Section 8 hereof.)
b. Settlement for the purchase of such Shares by the Company pursuant to
this Section shall be made within one (1) year following the date of the Section
9 Event, unless the Company for any reason is legally prohibited from redeeming
any of those Shares, in which case the Company may thereafter redeem such shares
on the earliest date(s) on which the Company is no longer so prohibited from
redeeming such Shares, or unless the Company has not obtained all required third
party consents to such purchase, in which case settlement shall occur as
promptly as practicable following the date that the Company shall obtain such
consents. The Company hereby agrees to use its best efforts to obtain all such
requisite third party consents. Settlement for the purchase and sale of such
Shares shall, unless otherwise agreed to by the Company and Consultant, be held
at the principal offices of the Company during regular business hours. The
precise date and hour of settlement shall be fixed by the Company (within the
time limits allowed by the provisions of this Section) by notice in writing to
Consultant given at least five (5) days in advance of the settlement date
specified. At settlement, the Shares being sold shall be delivered by Consultant
to the Company, duly endorsed for transfer or with executed stock powers
attached, with any necessary documentary and transfer tax stamps affixed by
Consultant in exchange for the purchase price therefor.
10. Optional Company Right to Repurchase Shares for Purchase Price
Thereof.
a. In the event (each of the following, a "Section 10 Event") that the
Consultant's consulting arrangement with the Company or a Company Affiliate
shall cease as a consequence of (a) the Consultant's willful or gross
malfeasance or gross misconduct with
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respect to the Company or a Company Affiliate, including without
limitation, fraud, embezzlement, theft or proven dishonesty or (b) Consultant's
conviction of a felony (the events described in subsections (a) and (b),
collectively, "Cause"), the Company may (unless otherwise prevented by law), at
its option, upon written notice thereof given within 30 days of such Section 10
Event and upon the tender of payment therefor, redeem all of the Shares owned by
the Consultant at the time of such Section 10 Event. The purchase price for any
Shares so redeemed pursuant to the provisions of this Section 10 shall be equal
to the price paid by the Consultant for such Shares.
b. Settlement for the purchase of such Shares by the Company pursuant to
this Section shall be made within one (1) year following the date of the Section
10 Event, unless the Company for any reason is legally prohibited from redeeming
any of those Shares, in which case the Company may thereafter redeem such shares
on the earliest date(s) on which the Company is no longer so prohibited from
redeeming such shares, or unless the Company has not obtained all required third
party consents to such purchase, in which case settlement shall occur as
promptly as practicable following the date that the Company shall obtain such
consents. All settlements for the purchase and sale of such Shares shall, unless
otherwise agreed to by the Company and Consultant, be held at the principal
offices of the Company during regular business hours. The precise date and hour
of settlement shall be fixed by the Company (within the time limits allowed by
the provisions of this Section) by notice in writing to Consultant given at
least five (5) days in advance of the settlement date specified. At settlement,
the Shares being sold shall be delivered by Consultant to the Company, duly
endorsed for transfer or with executed stock powers attached, with any necessary
documentary and transfer tax stamps affixed by Consultant.
11. Company Purchase Option.
a. Consultant shall not (either during or following Consultant's
employment with the Company) transfer, sell, donate, pledge or otherwise dispose
of or encumber (collectively, "Transfer") any Shares except as provided in this
Section 11.
b. In the event Consultant (either during or following Consultant's
employment with the Company) desires to in any way directly or indirectly,
Transfer, either voluntarily or involuntarily, all or any portion of his Shares,
Consultant shall first obtain a bona fide written offer which he desires to
accept (hereinafter called the "Offer") to purchase the Shares which he desires
to sell ("Offered Shares"). Consultant shall then provide written notice to the
Company of such desire which notice shall set forth the price per share for the
Offered Shares set forth in the Offer, and the other terms and conditions upon
which Consultant shall sell the Offered Shares. The purchase price payable by
the Company for such Offered Shares shall be equal to the price per Share paid
by the Consultant for such Shares.
c. For a period of fifteen (15) days after the delivery to the Company
of notice of the Offer, the Company shall have the option, exercisable by
written notice to Consultant, to purchase the Offered Shares for the purchase
price set forth above. If the Company does not
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exercise its option to purchase the Offered Shares within the applicable
fifteen (15) day period, the Company's option to purchase the Offered Shares
shall terminate and Consultant shall have the right to sell the Offered Shares
to the third party making the Offer at a purchase price not less than the
purchase price set forth in the Offer and substantially in accordance with the
other terms and conditions of the Offer; provided, however, that if a Transfer
to such third party is not consummated within ninety (90) days after the
expiration of the foregoing fifteen (15) day period at a purchase price not less
than the purchase price set forth in the Offer and substantially in accordance
with the other terms and conditions of the Offer, Consultant shall not be
entitled to Transfer the Offered Shares unless a new Offer is obtained and the
Offered Shares are then reoffered to the Company in accordance with the
foregoing procedures of this Section.
d. Settlement for the purchase of Offered Shares by the Company pursuant
to this Section shall be made within thirty (30) days following the date of
exercise of the option. Settlements for the purchase and sale of Offered Shares
shall, unless otherwise agreed to, be held at the principal offices of the
Company during regular business hours. The precise date and hour of settlement
shall be fixed by the Company (within the time limits allowed by the provisions
of this Agreement) by notice in writing to Consultant given at least five (5)
days in advance of the settlement date specified. At settlement, the Offered
Shares being sold shall be delivered by Consultant to the Company, duly endorsed
for transfer or with executed stock powers attached, with any necessary
documentary and transfer tax stamps affixed by Consultant.
e. This Section shall not apply to a transfer of Shares by Consultant to
his spouse, parents, siblings or lineal descendants or any such persons or to a
trust for the benefit of any of the foregoing (including trusts for such
Consultant's benefit); provided, that any such transferee shall agree in writing
to be bound by, and to comply with, all applicable provisions of this Agreement;
provided, further, that any shares so transferred shall be held by the
transferee subject to the rights, obligations, sale/repurchase rights and other
burdens which would be imposed on Consultant with respect to such Shares as if
he had not transferred the shares.
f. In connection with, and as a condition of, permitting any Transfer or
delivery of stock certificates under this Section, the Company may require
Consultant to pay to it a sufficient sum to enable it to pay, or to reimburse it
for any payment made in respect of, any stamp tax or other governmental charge
in connection with such transfer or delivery.
g. The provisions of this Section 11 shall remain in full force and
effect until the closing of the first public offering of the Company's common
stock after the date hereof.
12. Noncompetition; Non-Solicitation: Proprietary Information; Property.
a. The Consultant shall not, during all times (the "Term") that he is
employed or retained by, or otherwise associated with, the Company or a Company
Affiliate and for a
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period of twenty-four (24) months thereafter (the "Restricted Period"),
do any of the following directly or indirectly without the prior written consent
of the Company:
(1) engage or participate in any business activity competitive with
the Company's business, or the business of any of the Company Affiliates,
(defined as all of the Company's present business activities including
transportation of bulk chemicals or industrial gases by truck and any and all
related activities) as same are conducted during the Term with respect to any
period during the Term, or upon the termination of the Term with respect to the
balance of the Restricted Period (the "Business");
(2) become interested in (as owner, stockholder, lender, partner,
co-venturer, director, officer, consultant, agent, consultant or otherwise) any
person, firm, corporation, association or other entity engaged in any business
that is competitive with the Business during the Term or the balance of the
Restricted Period, or become interested in any portion of the business of any
person where such portion of such business is competitive with the Business
during the Term or the balance of the Restricted Period. Notwithstanding the
foregoing, Consultant may hold not more than one percent (1%) of the outstanding
securities of any class of any publicly-traded securities of a company that is
so engaged.
b. Consultant shall not, during the Term and for the balance of the
Restricted Period, do any of the following, directly or indirectly, without the
prior written consent of the Company:
(1) solicit, call on, or in any way contact, either directly or
indirectly, whether on behalf of Consultant or any other person, any account,
client, customer or supplier with whom (or which) the Company or a Company
Affiliate shall have dealt at any time during the Term or for the two (2) year
period immediately preceding the Term;
(2) influence or attempt to influence any supplier, customer or
potential customer of the Company or a Company Affiliate to terminate or modify
any written or oral agreement or course of dealing with the Company or a Company
Affiliate;
(3) employ or retain, or arrange to have any other person or entity
employ or retain, any person who shall have been employed or retained by the
Company or a Company Affiliate as an employee, consultant, agent, distributor or
in a similar such capacity at any time during the Term; or
(4) influence or attempt to influence any such person to terminate or
modify his employment, consulting, agency, distributorship or other arrangement
with the Company or a Company Affiliate.
c. (1) Consultant recognizes and acknowledges that the Proprietary
Information (as hereinafter defined) is a valuable, special and unique asset of
the business of the Company. As a result, both during the Term and thereafter,
Consultant shall not, without
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the prior written consent of the Company, for any reason either
directly or indirectly divulge to any third-party or use for his own benefit, or
for any purpose other than the exclusive benefit of the Company, any
confidential, proprietary, business~and technical information or trade secrets
of the Company or of any Company Affiliate ("Proprietary Information") revealed,
obtained or developed in the course of his retention with the Company or Company
Affiliate. Such Proprietary Information shall include, but shall not be limited
to, any information relating to research, computer codes or instructions, costs,
business studies, business procedures, finances, marketing data, methods, plans
and efforts, the identities of customers, contractors and suppliers and
prospective customers, contractors and suppliers, the terms of contracts and
agreements with customers, contractors and suppliers, personnel information,
customer and vendor credit information, and any other confidential information
relating to the business of the Company, provided, that nothing herein contained
shall restrict Consultant's ability to make such disclosures during the Term as
may be necessary or appropriate to the effective and efficient discharge of his
duties to the Company or as such disclosures may be required by law, and further
provided, that nothing herein contained shall restrict Consultant from divulging
or using for his own benefit or for any other purpose any Proprietary
Information which is readily available to the general public so long as such
information did not become available to the general public as a direct or
indirect result of Consultant's breach of this Section 12(c)(1). Failure by the
Company to xxxx any of the Proprietary Information as confidential or
proprietary shall not affect its status as Proprietary Information under the
terms of this Agreement.
(2) In the event that the Consultant is requested pursuant to, or
required by, applicable law or regulation or by legal process to disclose any
such Confidential Information, the Consultant shall provide the Company with
prompt notice of such request or the receipt of legal process to enable the
Company to seek an appropriate protective order, to consult with the Company
with respect to the taking of steps to resist or narrow the scope of such
request or process, and/or waive compliance in whole or in part with the
Consultant's agreement to maintain the confidentiality of such data or
information. If and to the extent after the foregoing notice, in the absence of
a protective order or receipt of a waiver under this Agreement, the Consultant
is, in the written opinion of the Consultant's counsel, compelled to disclose
such data or information or be liable for contempt or suffer censure or penalty
or violate applicable laws or regulations, the Consultant may disclose such data
or information without liability to the Company under this Agreement.
d. All right, title and interest in and to Proprietary Information
shall be and remain the sole and exclusive property of the Company. During the
Term, Consultant shall not remove from the Company's offices or premises any
documents, records, notebooks, files, correspondence, reports, memoranda or
similar materials of or containing Proprietary Information, or other materials
or property of any kind belonging to the Company unless necessary or appropriate
in accordance with his employment and, in the event that such materials or
property are removed, all of the foregoing shall be returned to their proper
files or places of safekeeping as promptly as possible after the removal shall
serve its specific purpose. Consultant shall not make, retain, remove and/or
distribute any copies of any of the foregoing
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for any reason whatsoever, except as disclosure shall be necessary in
the performance of his duties; and upon the termination of the Term, he shall
leave with or return to the Company all originals and copies of the foregoing
then in his possession, whether prepared by Consultant or by others.
e. Consultant acknowledges that the restrictions contained in this
Section 12 are reasonable and necessary to protect the legitimate interests of
the Company and its affiliates and that the Company would not have entered into
this Agreement in the absence of such restrictions. Consultant also acknowledges
that any breach by him of this Section 12 will cause continuing and irreparable
injury to the Company for which monetary damages would not be an adequate
remedy. Consultant shall not, in any action or proceeding to enforce any of the
provisions of this Agreement, assert the claim or defense that such an adequate
remedy at law exists. In the event of such breach by Consultant, the Company
shall have the right to enforce the provisions of this Section 12 by seeking
injunctive or other relief in any court, and this Agreement shall not in any way
limit remedies of law or in equity otherwise available to the Company. If an
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to recover, in addition
to any other relief, reasonable attorneys' fees, costs and disbursements. In the
event that the provisions of this Section 12 should ever be adjudicated to
exceed the time, geographic, or other limitations permitted by applicable law in
any applicable jurisdiction, then such provisions shall be deemed reformed in
such jurisdiction to the maximum time, geographic, or other limitations
permitted by applicable law. In the event that Consultant shall be in breach of
any of the restrictions contained in Sections 12(a) and/or (b) hereof, then the
Restricted Period shall be extended for a period of time equal to the period of
time that Consultant is in breach of such restriction.
13. Notice. Any notice or communication required or permitted under
this Agreement shall be made in writing and sent by certified or registered
mail, return receipt requested, addressed as follows:
If to the Company:
Chemical Xxxxxx Corporation
000 Xxxxxxxxx Xxx
Xxxxx, XX 00000
Fax: (000) 000-0000
If to the Consultant:
Xxxxxxxx X. Xxxxx-Xxxxxx
c/o The Acumen Group
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Telephone (000) 000-0000
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or to such other address as either party may from time to time duly
specify by notice given to the other party in the manner specified above.
14. Gender: Number. All pronouns and other words used herein shall include
all genders and the singular and the plural as the context requires.
15. Headings. The headings of the Sections located herein are for
convenience only, and they are not part of this Agreement and shall not affect
its interpretation.
16. Applicable Law. This Agreement shall be governed by and be construed in
accordance with the internal laws of the Commonwealth of Pennsylvania, without
regard to the principles of conflicts of laws thereof.
17. Entire Agreement. This Agreement constitutes the entire understanding
among the parties with respect to the subject matter hereof, and supersedes any
prior understanding and/or written or oral agreements among them with respect
thereto, except as may be contained herein. This Agreement may not be changed or
modified, except by an Agreement in writing signed by each of the parties
hereto.
18. No Third Party Beneficiaries. This Agreement is for the sole benefit of
the parties hereto and their respective permitted successors and assigns, and
neither this Agreement, nor any provision hereof shall be construed as
conferring and are not intended to confer any rights on any other persons. In
furtherance and not in limitation of the foregoing, the parties hereto
acknowledge and agree that the Shares being sold hereunder are being sold by the
Company pursuant to this Agreement only, and are not being sold pursuant to a
plan or other arrangement generally available to the Company's employees.
19. Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefits of the parties hereto, their
successors and assigns.
20. Assignment. The Consultant agrees not to transfer or assign this
Agreement, or any of the Consultant's interest herein, and further agrees that
the transfer or assignment of the Shares shall be made only in accordance with
applicable laws and the terms of this Agreement.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, the parties executed this Purchase Agreement on the
date and Year first written above.
CHEMICAL XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Executive Vice President
XXXXXXXX X. XXXXX-XXXXXX
/s/ Xxxxxxxx X. Xxxxx-Xxxxxx
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Signature
