EXHIBIT 10.12
STOCK PURCHASE AND PLEDGE AGREEMENT
BETWEEN
CHEMICAL LEAMAN CORPORATION
AND
PHILIP J. RINGO
DATED: AUGUST 9, 1995
STOCK PURCHASE AND PLEDGE AGREEMENT
This Stock Purchase and Pledge Agreement (the "Agreement") is made this
9th day of August, 1995, by and between CHEMICAL LEAMAN CORPORATION, a
Pennsylvania corporation (the "Company") and PHILIP J. RINGO, a resident of the
Commonwealth of Pennsylvania ("Ringo").
BACKGROUND
Pursuant to a letter agreement, dated June 2, 1995, among the Company,
the Company's wholly-owned subsidiary, Chemical Leaman Tank Line, Inc. ("Tank
Lines") and Ringo (the "Letter Agreement"), Ringo will be employed as the
President and Chief Executive Officer of Tank Lines commencing on or about July
14, 1995. Paragraph 8 of the Letter Agreement also provides that the Company
will sell to Ringo seventy six (76) shares of the common stock of the Company
(the "Shares"). In order to consummate the transaction set forth in Paragraph 8
of the Letter Agreement, Ringo desires to purchase the Shares from the Company
and the Company desires to sell the Shares to Ringo, all upon the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants herein contained, and intending to be legally bound,
Ringo and the Company hereby agree as follows:
ARTICLE 1
STOCK PURCHASE
1.1. Purchase and Sale of the Shares. Subject to the terms and conditions
set forth herein, Ringo hereby subscribes for and agrees to purchase from the
Company and the Company hereby agrees to sell to Ringo, on the date hereof, the
Shares.
ARTICLE 2
CONSIDERATION
2.1. Purchase Price. As full payment for the Shares, on the date hereof,
Ringo shall pay to the Company an amount equal to Six Thousand Dollars
($6,000.00) per Share, for an aggregate purchase price of Four Hundred Fifty Six
Thousand Dollars ($456,000) (the "Purchase Price") by the delivery to the
Company of a promissory note in the aggregate principal amount of $456,000 in
substantially the form attached hereto as Exhibit A (the "Note").
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants as follows:
3.1. Organization, Power, Standing and Qualification. 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.
3.2. Power and Authority. 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.
3.3. Validity of Contemplated Transactions. 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 (Certificate) 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.
3.4. Ownership of Shares. 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 stockholders 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 or by the Securities Act of 1933, as
amended (the "Securities Act")).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF RINGO
Ringo hereby represents, warrants and acknowledges to the Company as
follows:
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(a) I am acquiring the Shares solely for my own account for investment
purposes and not with a present view to resale or distribution of all or
any part thereof. I have no present arrangement, understanding or agreement for
transferring or disposing of all or any part of the Shares. I will not sell,
transfer or otherwise dispose of any of my 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 (as hereinafter defined) is in
effect with respect to the Shares to be sold, transferred or disposed of, and I
comply with all of the requirements of the Securities Act and the Applicable
Laws with respect to the proposed transaction; or (b) I have obtained and have
provided to the Company an opinion from counsel satisfactory to the Company (as
to both the 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) I have such knowledge and experience in financial and business
matters that I am capable of evaluating the merits and risks of an
investment in the Shares and to form an investment decision with respect
thereto. I and my advisers have made such investigation, review, examination and
inquiry concerning the Company and its business and affairs as we have deemed
appropriate; and I and my 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 we 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) I recognize that an investment in the Company is speculative and
involves certain risks, and I have taken full cognizance of and understand and
can evaluate all of the risks of the investment in the Shares. I have adequate
net worth and means of providing for my current needs and personal contingencies
to sustain a complete loss of my investment in the Company.
(d) I understand that the Shares are being offered and sold in reliance
on specific exemptions from the
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Registration requirements of Federal and state law and that the Company is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgements and understandings set forth herein in order to
determine the applicability of such exemptions and my suitability to acquire the
Shares.
(e) I understand that there is no established market for the Shares, nor
is any such market expected to develop. I must therefore hold my Shares
indefinitely unless a subsequent Registration or exemption therefrom is
available and is obtained. No federal or state agency has approved or
disapproved the Shares for investment or any other purpose.
(f) No broker or finder has acted for me in connection with my 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 me and any broker or finder.
(g) I am an accredited investor (as such term is defined in Regulation D
under the Securities Act). I am a natural person and a resident of the
Commonwealth of Pennsylvania. I am a citizen of the United States of America, am
at least 21 years of age, and I have the legal capacity to execute, deliver and
perform this Agreement.
(h) All information which I have provided to the Company concerning
myself, my financial position and my knowledge of financial and business
matters, including all information contained herein.
(i) 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 my Shares.
ARTICLE 5
PLEDGE OF STOCK
5.1. Grant of Security Interest. Ringo hereby assigns, pledges and grants
to the Company a security interest in the Shares, together with all additions
thereto, substitutions or exchanges therefor, proceeds thereof and distributions
thereon (which shall be referred to collectively herein as the "Collateral"), as
collateral security for the Note and for the payment and performance of all
indebtedness, liability and obligations of Ringo to Company (collectively, the
"Obligations"), whether for principal, interest, fees, expenses
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or otherwise, now existing or hereafter created or arising under the Note
and this Agreement (collectively, the "Documents"), all on the terms and
conditions set forth in this Article 5. The Obligations shall include amounts
for which Ringo has no personal liability pursuant to Paragraph 5 of the Note.
5.2. Limitations on Encumbrances. Prior to the full payment and performance
of the Obligations, Ringo agrees not to create or permit to exist any lien,
security interest, or other charge or encumbrance upon or with respect to any of
the Collateral, except the security interest under this Agreement.
5.3. Additional Security. Prior to the full payment and performance of the
Obligations, the Company shall be entitled to receive, as additional Collateral
any and all additional shares of stock or any other property of any kind
distributable on or by reason of the Shares pledged hereunder, whether in the
form of or by way of stock dividends or otherwise, with the sole exception of
normal, regularly declared cash dividends. If any of such property, other than
such cash dividends, shall come into the possession or control of Ringo, Ringo
shall hold or control and forthwith transfer and deliver the same to Company
subject to the provisions hereof.
5.4. Rights Prior to a Default. So long as no default has occurred under
any of the Obligations or Documents and Ringo is in full compliance with the
terms hereof:
(a) Ringo shall be entitled to receive and retain any normal, regularly
declared cash dividends paid on the Shares pledged hereunder.
(b) Ringo may exercise all voting rights, if any, pertaining to the
Shares for any purpose.
5.5. Further Assurances. Ringo shall take all actions (and execute and
deliver from time to time all instruments and documents) necessary or
appropriate or reasonably requested by Company, to continue the validity,
enforceability and perfected status of the pledge of the Shares hereunder.
5.6. No Obligations. The Company shall be under no obligation to take any
actions and shall have no liability (except for negligence or willful
misconduct) with respect to the preservation or protection of the pledged Shares
or any underlying interests represented thereby as against any prior or other
parties.
5.7. Extensions, etc. Ringo agrees that the Company, at any time and
without affecting its rights in the pledged Shares and without notice to Ringo,
may grant any extensions, releases or other modifications of any kind respecting
the Documents,
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Obligations and any collateral security therefor and Ringo, except as
otherwise provided herein or in the Documents, waives all notices of any kind in
connection with the Obligations, the Documents and any changes therein or
defaults or enforcement proceedings thereunder, whether against Ringo or any
other party. Ringo hereby waives any rights it has at equity or in law to
require the Company to apply any rights of marshalling or other equitable
doctrines in the circumstances.
5.8. Default. After the occurrence of an Event of Default (as defined in
the Note) or if any representation, warranty or agreement of Ringo hereunder is
breached or proves to be false (a "Default"):
(a) The Company may transfer or cause to be transferred any of the
pledged Shares into its own or a nominee's or nominees' names.
(b) The Company shall be entitled to receive and apply in payment of the
Obligations any cash dividends or other payment on the pledged Shares.
(c) The Company shall be entitled to exercise in the Company's
discretion all voting rights, if any, pertaining thereto and in connection
therewith and at the written request of the Company, Ringo shall execute any
appropriate dividend, payment or brokerage orders or proxies.
(d) Ringo shall take any action necessary or required or reasonably
requested by the Company, in order to allow the Company fully to enforce the
pledge of the Shares hereunder and realize thereon to the fullest possible
extent, including but not limited to the filing of any claims with any court,
liquidator or trustee, custodian, receiver or other like person or party.
(e) The Company shall have all the rights and remedies granted or
available to it hereunder, under the Uniform Commercial Code as in effect
from time to time in Pennsylvania, under any other statute or the common law, or
under any of the Documents, including the right to sell the pledged Shares or
any portion thereof at one or more public or private sales upon ten (10) days'
written notice and to bid thereat or purchase any part or all thereof in its own
or a nominee's or nominees' names, free and clear of any equity of redemption;
and to apply the net proceeds of the sale, after deduction for any expenses of
sale, including the payment of all the Company's reasonable attorneys' fees in
connection with the Obligations and the sale, to the payment of the Obligations
in any manner or order which the Company in its sole discretion may elect,
without further notice
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to or consent of Ringo and without regard to any equitable principles of
marshalling or other like equitable doctrines.
5.9. Appointment as Attorney-in-Fact. Effective upon the occurrence of a
Default, Ringo hereby irrevocably appoints Company as its attorney-in-fact to
execute, deliver and record, if appropriate, from time to time any instruments
or documents in connection with the Collateral, in Ringo or the Company's names.
5.10. Duration of Provisions. The provisions of this Article 5 shall remain
in full force and effect until the payment and satisfaction in full of the
Obligations.
ARTICLE 6
LIMITATIONS ON TRANSFERS
6.1. General Limitation. Ringo agrees not to transfer any or all of the
Shares except in accordance with the terms and subject to the conditions set
forth in this Agreement.
6.2. Limitations on Transfer. In the event Ringo desires to sell, or in any
other way directly or indirectly, to transfer, assign, distribute, pledge, lien,
hypothecate, or otherwise dispose of, either voluntarily or involuntarily, all
or any portion of his Shares, Ringo shall first offer to sell the Shares which
he desires to sell ("Offered Shares") to the Company by written notice of such
desire ("Offer"). The Offer shall set forth the price per share which Ringo
desires to receive for the Offered Shares, and the other terms and conditions
upon which Ringo desires to sell the Offered Shares. In the event that any such
Offer would require payment of consideration other than cash, the Company shall
be entitled to pay for each share of Offered Shares, in lieu of such other
consideration, in cash in an amount to be mutually agreed upon by Ringo and the
Company in good faith, or if no agreement can be reached, an amount determined
by an independent arbitration proceeding, which Ringo and the Company agree to
institute promptly, to constitute the fair value of such consideration.
(a) For a period of fifteen (15) days after the delivery of the Offer to
the Company, the Company shall have the option, exercisable by written notice to
Ringo, to accept the Offer. If the Company does not 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 Ringo shall
have the right to sell the Offered Shares to a third party 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 a third party is not
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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, Ringo shall not be entitled to transfer the Offered
Shares unless they are first reoffered to the Company in accordance with the
foregoing procedures of this Section.
(b) 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 Ringo given at least
five (5) days in advance of the settlement date specified. At settlement, the
Offered Shares being sold shall be delivered by Ringo to the Company, duly
endorsed for transfer or with executed stock powers attached, with any necessary
documentary and transfer tax stamps affixed by Ringo. In the event of the
purchase of Offered Shares by the Company, the Company shall pay the purchase
price either (i) in cash or by certified or cashier's check at settlement or
(ii) pursuant to the payment terms set forth in the Offer.
(c) This Section shall not apply to a transfer of Shares by Ringo 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 Ringo'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 subject to the security
interest granted herein and shall be held by the transferee subject to the
rights, obligations, sale/repurchase rights and other burdens which would be
imposed on Ringo with respect to such Shares as if he had not transferred the
shares.
6.3. Duration of Provisions. The provisions of this Article 6 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.
ARTICLE 7
MISCELLANEOUS
7.1. Entire Agreement; Amendments. This Agreement, together with the Note
and the Letter Agreement, constitute the entire understanding among the parties
hereto with respect to the
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subject matter contained herein and supersedes any prior understandings and
agreements among them respecting such subject matter. In the event of any
inconsistency between this Agreement and the Letter Agreement, the terms of this
Agreement shall control.
7.2. Headings. The headings in this Agreement are for convenience of
reference only and shall not affect its interpretation.
7.3. Gender; Number. Words of gender may be read as masculine, feminine, or
neuter, as required by context. Words of number may be read as singular or
plural, as required by context.
7.4. Severability. If any provision of this Agreement is held illegal,
invalid, or unenforceable, such illegality, invalidity, or unenforceability will
not affect any other provision hereof. This Agreement shall, in such
circumstances, be deemed modified to the extent necessary to render enforceable
the provisions hereof.
7.5. Waiver. The failure of any party hereto to insist upon strict
performance of any of the terms or conditions of this Agreement will not
constitute a waiver of any of its rights hereunder.
7.6. Assignment. No party hereto may assign any of its rights or delegate
any of its obligations hereunder without the prior written consent of the other
parties hereto.
7.7. Successors and Assigns. This Agreement binds, inures to the benefit
of, and is enforceable by the successors and assigns of the parties hereto, and
does not confer any rights on any other persons or entities.
7.8. Governing Law. This Agreement shall be construed and enforced in
accordance with the law of the Commonwealth of Pennsylvania.
7.9. Counterparts. This Agreement may be executed in any number of
counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same
instrument. The execution of this Agreement by any party hereto will not become
effective until counterparts hereof have been executed by all the parties
hereto. It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other counterparts.
7.10. Personal Liability. Notwithstanding anything herein contained to the
contrary, Ringo shall only be personally liable
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under the Note and this Agreement to the extent set forth in Paragraph 5 of
the Note.
7.11. Rule 701 Acknowledgement. The parties acknowledge that the offer and
sale of the Shares are exempt from registration under the Securities Act by
virtue of Rule 701 thereunder and other available exemptions.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
ATTEST: CHEMICAL LEAMAN CORPORATION
By: /s/ David M. Boucher By: /s/ Eugene C. Parkerson
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Title: Title:
Witness
/s/ [Illegible] /s/ Philip J. Ringo
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Philip J. Ringo