STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT made as of this 15th day of May, 1996, by and among
The General Chemical Group Inc., a Delaware corporation (the 'Company') and
Stonor Group Limited, a corporation organized under the laws of Liberia
('Stonor').
WITNESSETH:
WHEREAS, Stonor holds a voting trust certificate representing 9,868,421
shares of the Class B Common Stock, par value $.01 per share (the 'Class B
Common Stock'), of the Company, which is generally not transferrable but is
convertible at any time at the election of the holder into an identical number
of shares of Common Stock, par value $.01 per share (the 'Common Stock'), of the
Company (such number of shares, as the same is adjusted to reflect any stock
splits, dividends or other recapitalizations, of Class B Common Stock, or Common
Stock following any such conversion, being hereinafter referred to as the
'Stonor Shares');
WHEREAS, the Company has requested Stonor to grant it a right of first
refusal with respect to any sales of the Stonor Shares on the terms set forth
herein; and
WHEREAS, Stonor is willing to grant the Company such right of first refusal
only if the Company grants Stonor certain registration rights with respect to
the Stonor Shares.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
RESTRICTIONS ON SHARES
SECTION 1.01. Right of First Refusal. Stonor and any transferee of the
Stonor Shares under Section 1.02 (a 'Proposed Transferor') shall not sell,
assign, transfer, exchange, pledge or otherwise dispose of any Stonor Shares or
any interest therein (collectively, the 'Subject Shares') unless the Proposed
Transferor shall have received from a third party a bona fide written offer
therefor and shall have first given written notice thereof to the Company,
identifying the proposed transferee, the purchase price, if any, and the terms
of the proposed transaction, and offering said Subject Shares to the Company for
purchase by it at a purchase price equal to the value offered by such third
party, which amount shall be payable in cash or the equivalent under terms
substantially identical to those offered by such third party. Within three
trading days (i.e. days on which shares are traded on the New York Stock
Exchange) after receipt of the notice, the Company may elect to purchase all of
the Subject Shares so offered by delivering written notice of its acceptance
(the 'Acceptance Notice') to the Proposed Transferor within said three day
period. If the Company fails to give the Proposed Transferor the Acceptance
Notice within said three day period, said Subject Shares may be transferred
within 120 days after the expiration of said three day period to the proposed
transferee upon the price and terms specified in the notice and all shares so
transferred shall be free from all restrictions set forth in this Article I. Any
Subject Shares not so transferred within such 120-day period shall again become
subject to the provisions of this Article I.
SECTION 1.02. Exceptions to Restrictions. The restrictions set forth in
this Article I shall be inapplicable to any transfer of Subject Shares to a
Permitted Transferee (as such term is defined in the Company's Amended and
Restated Certificate of Incorporation as of the date hereof) of the Proposed
Transferor; provided, however, that such Shares in the hands of each such
transferee shall remain subject to this Agreement.
SECTION 1.03. Transfers in Violation of Agreement. If any transfer of
Subject Shares is made or attempted contrary to the provisions of this
Agreement, or if Subject Shares are not offered to the Company as required by
this Agreement, the Company shall have the right to purchase said Subject Shares
from the holder thereof or such holder's transferee at any time before or after
the transfer, as hereinafter provided. In addition to any other legal or
equitable remedies that it may have, the Company may enforce its rights by
actions for specific performance (to the extent permitted by law) and may refuse
to recognize any transferee as one of its stockholders for any purpose,
including without
limitation for purposes of dividend and voting rights, until all applicable
provisions of this Agreement have been complied with.
SECTION 1.04. Tenders. All Subject Shares which the Company has elected to
purchase hereunder shall be tendered to the Company, or to one or more
substitute purchasers designated by it, at the principal office of the Company
at a date and time specified by it (within five trading days after the Proposed
Transferor's receipt of the Company's Acceptance Notice) by delivery of
certificates representing such Subject Shares, endorsed in blank and in proper
form for transfer against payment of the purchase price in cash or by certified
or bank checks, or upon such terms as are applicable under Section 1.01.
SECTION 1.05. Legend on Certificates; Stock Splits. etc. Each certificate
representing Subject Shares shall bear on its face the following legend:
'The shares represented by this certificate are subject to restrictions
on transfer, a copy of which will be furnished by the Company to the holder of
this certificate upon written request and without charge.'
SECTION 1.06. Term. The Company's right pursuant to Section 1.01 to
purchase Subject Shares shall terminate on the earliest to occur of (i)
immediately prior to the closing or effective date of any consolidation or
merger of the Company with any other person (other than a consolidation or
merger in which the Company is the continuing corporation where the stockholders
of the Company immediately prior thereto shall, immediately thereafter, hold as
a group the right to cast at least a majority of the votes of all holders of
voting securities of the continuing corporation or entity), any sale or transfer
by the Company of all or substantially all of its assets or any sale or transfer
of all or substantially all of the capital stock of the Company, or (ii) March
1, 2001.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.01. Required Registrations; 'Piggy-Back' Registration Rights.
(a) If on any three (3) occasions during the period beginning March 1, 1997
and ending March 1, 2001, a majority in interest of the Holders (as hereinafter
defined) shall notify the Company in writing that they intend to offer or cause
to be offered for public sale all or any portion of their Registrable Securities
(as hereinafter defined), the Company will use its best efforts to cause such of
the Registrable Securities as may be requested by the Holders to be registered
under the Securities Act of 1933, as amended (the 'Securities Act') for sale on
a delayed or continuous basis under Rule 415, and to keep such registration
effective for 180 days or until all of such Holders' Registrable Securities
registered thereunder are sold, whichever is shorter. All expenses of such
registrations and offerings, including the underwriting and selling commissions
relating to the Registrable Securities, attributable to any registration
pursuant to this Section 2.01(a) shall be borne by the Holders exercising their
rights hereunder. The Company may postpone the filing of any registration
statement required under this Section 2.01(a) for a reasonable period of time,
not to exceed 60 days during any twelve-month period, if the Company has been
advised by legal counsel that such filing would require a special audit or the
disclosure of a material impending transaction or other matter and the Company
determines reasonably and in good faith that such disclosure would have a
material adverse effect on the Company. The Company shall not be required to
cause a registration statement requested pursuant to this Section 2.01(a) to
become effective prior to 90 days following the effective date of a registration
statement initiated by the Company, if the request for registration has been
received by the Company subsequent to the giving of written notice by the
Company, made in good faith, to the Holders to the effect that the Company is
commencing to prepare a company-initiated registration statement (other than a
registration effected solely to implement an employee benefit plan or a
transaction to which Rule 145 or any other similar rule of the Securities and
Exchange Commission (the 'Commission') under the Securities Act is applicable);
provided, however, that the Company shall use its best efforts to achieve such
effectiveness promptly. Any registration effected pursuant to this Section
2.01(a) and so designated by the Holders shall be subject to this Section
2.01(a), regardless of the form in which such registration is effected.
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(b) If at any time or times after the date hereof, the Company shall
determine or be required to register any shares of its Common Stock for sale
under the Securities Act (whether in connection with a public offering of
securities by the Company (a 'primary offering'), a public offering of
securities by stockholders of the Company (a 'secondary offering'), or both, but
not in connection with a registration effected solely to implement an employee
benefit plan or a transaction to which Rule 145 or any other similar rule of the
Commission under the Securities Act is applicable), the Company will promptly
give written notice thereof to each of the Holders. In connection with any such
registration, if within 20 days after the receipt of such notice one or more
Holders of Registrable Securities (as hereinafter defined), request the
inclusion of some or all of the Registrable Securities (but not any other
shares) held by them in such registration, the Company will use its best efforts
to effect the registration under the Securities Act of all Registrable
Securities which such Holders request to be registered in a writing delivered to
the Company within 20 days after such Holders' receipt of the notice referred to
above. In the case of the registration of shares of Common Stock by the Company
in connection with an underwritten public offering, (i) the Company shall not be
required to include any Registrable Securities in such underwriting unless the
Holders thereof accept the terms of the underwriting as agreed upon between the
Company and the underwriter or underwriters selected by it, and (ii) if the
underwriter(s) determines that marketing factors require a limitation on the
number of Registrable Securities to be offered, the Company shall not be
required to register Registrable Securities of the Holders in excess of the
amount, if any, of shares of the capital stock which the principal underwriter
of such underwritten offering shall reasonably and in good faith agree to
include in such offering in excess of any amount to be registered for the
Company, and in the event of any such limitation the number of Registrable
Securities of any Holder requesting inclusion in such registration shall be
based upon the relative holdings of Common Stock of all Holders requesting such
registration (and if any Holder would thus be entitled to include more
Registrable Securities than such Holder requested to be registered, the excess
shall be allocated among other requesting Holders pro rata based upon their
relative holdings of Common Stock). All expenses relating to the registration
and offering of Registrable Securities pursuant to this Section 2.01(b) shall be
borne by the Company and the Holders of Registrable Securities registered in
such offering pro rata in the same proportion that the number of shares
registered by the Company and such Holders, as the case may be, bears to the
total number of shares registered, except that the Holders alone shall bear
underwriting and selling commissions attributable to their Registrable
Securities being registered and any transfer taxes on shares being sold by such
Holders.
SECTION 2.02. Form S-3. If the Company becomes eligible to use Form S-3
under the Securities Act or a comparable successor form, the Company shall use
its best efforts to continue to qualify at all times for registration of its
capital stock on Form S-3 or such successor form. In addition to their rights
under Section 2.01 hereof, the Holders shall have the right to request and have
effected registrations of Registrable Securities on Form S-3 or such successor
form for a sale of shares of Registrable Securities having an aggregate sale
price of not less than $500,000 (such requests shall be in writing and shall
state the number of shares of Registrable Securities to be disposed of and the
intended method of disposition of such shares by the Holders). The Company shall
use its best efforts to cause such Registrable Securities to be registered under
the Securities Act on Form S-3 (or any successor form). If so requested by the
Holders, the Company shall take such steps as are required to register the
Registrable Securities for which the Holders have requested registration for
sale on a delayed or continuous basis under Rule 415, and to keep such
registration continuously effective for a period of at least 36 months following
the date on which such registration statement is declared effective or until all
of such Registrable Securities registered thereunder are sold, whichever is
shorter. All expenses attributable to a registration requested pursuant to this
Section 2.02, including the underwriting and selling commissions relating to the
Registrable Securities, shall be borne by the Holders exercising their rights
hereunder. The Company may postpone the filing of any registration statement
required hereunder for a reasonable period of time, not to exceed 60 days during
any twelve-month period, if the Company has been advised by legal counsel that
such filing would require a special audit or the disclosure of a material
impending transaction or other matter and the Company determines reasonably and
in good faith that such disclosure would have a material adverse effect on the
Company. The Company shall not be required to cause a registration statement
requested pursuant to this Section 2.02 to become effective prior to 90
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days following the effective date of a registration statement initiated by the
Company, if the request for registration has been received by the Company
subsequent to the giving of written notice by the Company, made in good faith,
to the Holders to the effect that the Company is commencing to prepare a
Company-initiated registration statement (other than a registration effected
solely to implement an employee benefit plan or a transaction to which Rule 145
or any other similar rule of the Commission under the Securities Act is
applicable); provided, however, that the Company shall use its best efforts to
achieve such effectiveness promptly.
SECTION 2.03. Selection of Underwriter. If the Holders so elect, the
offering of Registrable Securities pursuant to a registration statement filed
under this Article II shall be in the form of an underwritten offering. If they
so elect, the Holders participating in such registration statement shall select
one or more nationally recognized firms of investment bankers to act as the
book-running managing underwriter or underwriters in connection with such
offering and shall select any additional investment bankers and managers to be
used in connection with the offering.
SECTION 2.04. Definitions.
(a) Registrable Securities. For the purposes of this Agreement, the term
'Registrable Securities' shall mean (i) any shares of Common Stock into which
any Stonor Shares are convertible and (ii) any shares of Common Stock issued or
issuable with respect to any of such shares by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization; provided, however, that any of the
foregoing that are sold in a registered sale pursuant to an effective
registration statement under the Securities Act or that may be sold without
restriction pursuant to Rule 144(k) under the Securities Act (as confirmed by an
unqualified opinion of counsel to the Company) shall not be deemed Registrable
Securities.
(b) Holders. For purposes of this Agreement, the term 'Holder' shall mean
any holder of Registrable Securities from time to time, including without
limitation (i) Stonor and (ii) any subsequent transferees of Stonor of Stonor
Shares or Registrable Securities.
SECTION 2.05. Further Obligations of the Company. Whenever under the
preceding Sections of this Article II the Company is required hereunder to
register any Registrable Securities, it agrees that it shall also do the
following:
(a) Use its best efforts (with due regard to the management of the
ongoing business of the Company) to diligently prepare and file with the
Commission a registration statement and such amendments and supplements to
said registration statement on the appropriate form and the prospectus used
in connection therewith as may be necessary to keep said registration
statement effective and to comply with the provisions of the Securities Act
with respect to the sale of securities covered by said registration
statement for the lesser of (i) 180 days (in the case of any registration
pursuant to Section 2.01) or 36 months (in the case of any registration
pursuant to Section 2.02) or (ii) the period necessary to complete the
proposed sale of such Registrable Securities;
(b) Furnish to each selling Holder such copies of each preliminary and
final prospectus and such other documents as such Holder may reasonably
request to facilitate the sale of such Holder's Registrable Securities;
(c) Enter into any reasonable underwriting agreement required by the
proposed underwriter for the selling Holders, if any;
(d) Use its best efforts to register or qualify the securities covered
by said registration statement under the securities or 'blue-sky' laws of
such jurisdictions as any selling Holders may reasonably request, provided
that the Company shall not be required to register or qualify the
securities in any jurisdictions which require it to qualify to do business
or subject itself to general service of process therein;
(e) Immediately notify each selling Holder, at any time when a
prospectus relating to such Holder's Registrable Securities is required to
be delivered under the Securities Act, of the happening of any event as a
result of which such prospectus contains an untrue statement of a material
fact or omits any material fact necessary to make the statements therein
not misleading,
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and, at the request of any such selling Holder, prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(f) Cause all such Registrable Securities to be listed on each
securities exchange or quoted in each quotation system on which similar
securities issued by the Company are then listed or quoted;
(g) Otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission and make generally available to its
security holders, in each case as soon as practicable, but not later than
45 days after the close of the period covered thereby (90 days in case the
period covered corresponds to a fiscal year of the Company), an earnings
statement of the Company which will satisfy the provisions of Section 11(a)
of the Securities Act; and
(h) Obtain and furnish to each selling Holder, immediately prior to
the effectiveness of the registration statement (and, in the case of an
underwritten offering, at the time of delivery of any Registrable
Securities sold pursuant thereto), a cold comfort letter from the Company's
independent public accountants in the same form and covering the same
matters as is typically delivered to underwriters and, in the event that an
underwriter or underwriters have been retained in connection with such
registration, such cold comfort letter to be provided to the selling
Holders shall be the same cold comfort letter delivered to such underwriter
or underwriters.
SECTION 2.06. Indemnification; Contribution.
(a) Incident to any registration statement referred to in this Agreement,
and subject to applicable law, the Company will indemnify and hold harmless each
underwriter, each Holder of Registrable Securities (including its respective
directors, officers, employees and agents) so registered, and each person who
controls any of them within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (the 'Exchange Act'), from and against any
and all losses, claims, damages, expenses and liabilities, joint or several
(including any investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claim asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities arise out of or are based on (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement
(including any related preliminary or definitive prospectus, or any amendment or
supplement to such registration statement or prospectus), (ii) any omission or
alleged omission to state in such document a material fact required to be stated
in it or necessary to make the statements in it not misleading, or (iii) any
violation or alleged violation by the Company of the Securities Act, any state
securities or 'blue sky' laws or any rule or regulation thereunder in connection
with such registration, provided, however, that the Company will not be liable
to the extent that such loss, claim, damage, expense or liability arises from
and is based on (A) an untrue statement or omission or alleged untrue statement
or omission made in reliance on and in conformity with information furnished in
writing to the Company by such underwriter, Holder or controlling person
expressly for use in such registration statement or (B) any preliminary
prospectus, to the extent that any such loss, claim, damage or liability results
solely from an untrue statement of a material fact contained in, or the omission
of a material fact from, such preliminary prospectus which untrue statement or
omission was corrected in the final prospectus, if the Company shall sustain the
burden of proving that a Holder sold Registrable Securities to the person
alleging such loss, claim, damage or liability without sending or giving, at or
prior to the written confirmation of such sale, a copy of the final prospectus.
With respect to such untrue statement or omission or alleged untrue statement or
omission in the information furnished in writing to the Company by such Holder
expressly for use in such registration statement, such Holder will indemnify and
hold harmless each underwriter, the Company (including its directors, officers,
employees and agents), each other Holder of Registrable Securities (including
its respective directors, officers, employees and agents) so registered, and
each person who controls any of them within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, expenses and liabilities, joint or several, to which
they, or any of them, may become subject under the Securities Act, the Exchange
Act or other federal or
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state statutory law or regulation, at common law or otherwise to the same extent
provided in the immediately preceding sentence. In no event, however, shall the
liability of a Holder for indemnification under this Section 2.06(a) exceed the
lesser of (i) that proportion of the total of such losses, claims, damages or
liabilities indemnified against equal to the proportion of the total Registrable
Securities sold under such registration statement which is being sold by such
Holder or (ii) the proceeds received by such Holder from its sale of Registrable
Securities under such registration statement.
(b) If the indemnification provided for in Section 2.06(a) above for any
reason is held by a court of competent jurisdiction to be unavailable to an
indemnified party in respect of any losses, claims, damages, expenses or
liabilities referred to therein, then each indemnifying party under this Section
2.06, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, expenses or liabilities in such proportion as
is appropriate to reflect the relative fault of the Company, the selling Holders
and the underwriters in connection with the statements or omissions which
resulted in such losses, claims, damages, expenses or liabilities, as well as
any other relevant equitable considerations. The relative fault of the Company,
the selling Holders and the underwriters shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the selling Holders or the underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, the Holders, and
the underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 2.06(b) were determined by pro rata or per capita
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding sentences.
In no event, however, shall a Holder be required to contribute any amount under
this Section 2.06(b) in excess of the lesser of (i) that proportion of the total
of such losses, claims, damages or liabilities indemnified against equal to the
proportion of the total Registrable Securities sold under such registration
statement which is being sold by such Holder or (ii) the proceeds received by
such Holder from its sale of Registrable Securities under such registration
statement. No person found guilty of fraudulent misrepresentation (within the
meaning of Section l l(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(c) The indemnification and contribution provided for in this Section 2.06
will remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified parties or any officer, director, employee, agent
or controlling person of the indemnified parties.
SECTION 2.07. Rule 144 Requirements. If the Company becomes subject to the
reporting requirements of either Section 13 or 15(d) of the Exchange Act, the
Company will use its best efforts to file with the Commission such information
as the Commission may require under either of said Sections; and in such event,
the Company shall use its best efforts to take all action as may be required as
a condition to the availability of Rule 144 or Rule 144A under the Securities
Act (or any successor or similar exemptive rules hereafter in effect). The
Company shall furnish to any Holder of Registrable Securities upon request a
written statement executed by the Company as to the steps it has taken to comply
with the current public information requirement of Rule 144 or Rule 144A or such
successor rules.
SECTION 2.08. Transfer of Registration Rights. The registration rights and
related obligations under this Article II of Stonor with respect to any of its
Registrable Securities may be assigned by it, and upon such transfer the
relevant transferee shall be deemed to be included within the definition of a
'Holder' solely for purposes of this Article II. Stonor and any subsequent
transferee shall notify the Company at the time of such transfer.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to the conflicts of law principles thereof.
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SECTION 3.02. Further Assurances. Each of the parties hereto agrees to
execute all such further instruments and documents and to take all such further
action as any other party may reasonably require in order to effectuate the
terms and purposes of this Agreement.
SECTION 3.03. Rights of Third Parties. Nothing expressed or implied in this
Agreement is intended or shall be construed to confer upon or give any person or
entity other than the parties hereto any rights or remedies under or by reason
of this Agreement.
SECTION 3.04. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original and all such counterparts shall be taken to constitute one and the
same document.
SECTION 3.05. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
Holders shall be enforceable to the fullest extent permitted by law.
SECTION 3.06. Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and is intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
SECTION 3.07. Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall, to the extent permitted by
applicable law, be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
SECTION 3.08. Remedies. In the event of a breach or a threatened breach by
any party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach will be entitled to specific performance
of its rights under this Agreement or to injunctive relief, in addition to being
entitled to exercise all rights provided in this Agreement and granted by law.
The parties agree that the provisions of this Agreement shall be specifically
enforceable, it being agreed by the parties that the remedy at law, including
monetary damages, for objection in any action for specific performance or
injunctive relief that a remedy at law would be adequate is waived.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE GENERAL CHEMICAL GROUP, INC.
By: /s/ RALPH M. PASSINO
..................................
Name:
Title:
STONOR GROUP LIMITED
By: /s/ R.J. WILLIS
..................................
Name:
Title:
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