SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILE PURSUANT TO
RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13-d-2(a)
JLM Industries, Inc.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
46621D 10
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(CUSIP Number)
John L. Macdonald
8675 Hidden River Parkway
Tampa, Florida 33637
(813) 632-3300
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
February 18, 2000*
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(Date of Event which Requires Filing of this Statement)
* Although definitive documentation relating to the transfer was previously
executed (December, 1999) and the effective date of such documents is as of
September 17, 1999, issues related to the divorce proceedings between the
Reporting Person and John L. Macdonald have delayed the filing of the definitive
documentation with the appropriate Florida court, which is desirable to ensure
that such documentation is fully effective. The parties intended to file
Schedule 13Ds upon the filing of such documents with the Florida court. Because
of the delays, the above date is the date securities counsel for the parties
agreed to file appropriate Schedule 13Ds, pending resolution of any remaining
issues in the divorce proceedings. It is currently expected that the definitive
documentation will be filed with the Florida court in the near future.
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 6 pages)
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CUSIP No. 73931P 10 5 Page 2 of 6
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Names of Reporting Person:
1 Derry B. Macdonald
I.R.S. Identification No. of Above Person (entity only)
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2 Check the Appropriate Box if a Member of a Group*
(a)[X]
(b)[ ]
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SEC use only
3
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Source of Funds*
4
00
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Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
5 or 2(e)
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Citizenship or Place of Organization
6
United States Citizen
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Sole voting power
7 -0-
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Number of shares Shared voting power
beneficially 8 -0-
owned by each -------------------------------------------------------
Reporting person with Sole dispositive power
9 1,487,500
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Shared dispositive power
10 -0-
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Aggregate Amount Beneficially Owned by Each Reporting Person
11 1,487,500
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Check box if the Aggregate Amount in Row (11) Excludes Certain Shares*
12 [X]
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Percent of Class Represented by Amount in Row (11) [ ]
13 22.58%
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Type of Reporting Person*
14
IN
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o SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 73931P 10 5 Page 3 of 6
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ITEM 1. SECURITY AND ISSUER. This Schedule relates to the Common Stock,
$.01 par value (the "Common Stock") of JLM Industries, Inc., a Florida
corporation (the "Issuer") whose principal executive offices are located at 8675
Hidden River Parkway, Tampa, Florida 33637.
ITEM 2. IDENTITY AND BACKGROUND.
ITEM 2(a) This Schedule is being filed by Derry B. Macdonald
("Reporting Person").
ITEM 2(b) The address of the Reporting Person is as follows:
1047 Royal Pass Road, Tampa, Florida 33602.
ITEM 2(c) The principal occupation or employment of the Reporting
Person is an individual investor.
ITEM 2(d) During the last five years the Reporting Person has
not been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
ITEM 2(e) During the last five years the Reporting Person has
not been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction that
resulted in the Reporting Person being subject to a
judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities
subject to, Federal or State securities laws or finding
any violation with respect to such.
ITEM 2.(f) The Reporting Person is a citizen of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The Common Stock held by the Reporting Person was acquired from her former
spouse pursuant to a Final Judgment of Dissolution of Marriage and Marital
Settlement Agreement. The Reporting Person used no funds in the
acquisition.
ITEM 4. PURPOSE OF TRANSACTION.
The Reporting Person holds the Common Stock for investment purposes.
On or about September 17, 1999, John L. Macdonald and the Reporting Person
entered into a Marital Settlement Agreement (the "Settlement Agreement")
pursuant to which the Irrevocable Trust agreed to transfer 1,500,000 shares
of the Common Stock (the "Transferred Shares") to the Reporting Person.
Under the terms of the Settlement Agreement, the shares of the Common Stock
beneficially owned by the Reporting Persons became subject to a
Stockholders Voting Agreement, Irrevocable Proxy and Right of First Refusal
between John L. Macdonald, the Reporting Person, Maxwell Stolzberg as
Trustee of the Irrevocable Trust and JLM Industries, Inc. (the
"Stockholders Agreement"). The Stockholders Agreement was incorporated by
reference into the Settlement Agreement.
The terms of the Stockholders Agreement provide, among other things, that
any sale of 5,000 or more shares of the Common Stock by either the
Reporting Person or John L. Macdonald must first be offered to the other
parties to the Stockholders Agreement.
The Stockholders Agreement also provides for the granting of an irrevocable
proxy by the Reporting Person to John L. Macdonald for the purpose of
voting all of the shares of the Common Stock owned by the Reporting Person.
The Stockholders Agreement further
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CUSIP No. 73931P 10 5 Page 4 of 6
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provides that all of the parties to the Stockholders Agreement will vote
shares of the Common Stock registered in their respective names in favor of
(a) the election of John L. Macdonald as a director of the Issuer; (b) the
election of such other persons as John L. Macdonald designates for election
as a director of the issuer, through and including the annual stockholders
meeting in 2009; and (c) such other matters as John L. Macdonald shall deem
best to improve the liquidity and marketability of the Common Stock while
increasing the value and yield of the Common Stock, with due regard for all
tax consequences.
The Stockholders Agreement shall continue until the earliest of (a) the day
immediately preceding the Issuer's 2009 annual stockholders meeting; (b)
termination of the Stockholders Agreement in writing by the parties; or (c)
the day John L. Macdonald ceases to be Chairman or Chief Executive Officer
of the Issuer.
On or about September 17, 1999, the Circuit Court of the Thirteenth
Judicial Circuit in and for Hillsborough County, Florida, Family Law
Division (the "Court"), entered a Final Judgment of Dissolution of Marriage
that approved and incorporated the terms of the Settlement Agreement and
the Stockholders Agreement. Subsequently, the parties executed a definitive
form of the Stockholders Agreement which is expected to be filed with the
Court in the near future with the intention of making the definitive
Stockholders Agreement fully effective as of September 17, 1999.
At this time, the Reporting Person has no specific plan or proposal to
acquire or dispose of the Common Stock. Consistent with her investment
purpose, the Reporting Person at any time and from time to time may acquire
additional shares of Common Stock or dispose of any or all of the Reporting
Person's Common Stock depending upon an ongoing evaluation of the
investment in the Common Stock, prevailing market conditions, other
investment opportunities, liquidity requirements of the Reporting Person
and/or other investment considerations. The Reporting Person has made no
determination regarding a maximum or minimum number of shares of Common
Stock which she may hold at any point in time.
The Reporting Person has no present plans or proposals which would relate
to or result in:
(a) the acquisition by any person of additional securities of the Issuer,
or the disposition of securities of the Issuer;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its
subsidiaries;
(c) a sale or transfer of a material amount of assets of the Issuer or any
of its subsidiaries;
(d) any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number or term
of directors or to fill any existing vacancies on the board;
(e) any material change in the present capitalization or dividend policy of
the Issuer;
(f) any other material change in the Issuer's business or corporate
structure;
(g) changes in the Issuer's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control of
the Issuer by any person;
(h) causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted
in an inter-dealer quotation system of a registered national securities
association;
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CUSIP No. 73931P 10 5 Page 5 of 6
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(i) a class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g) (4) of the Act;
or;
(j) any action similar to any of those enumerated in (a) through (i) above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
ITEM 5(a) The Reporting Person owns 1,487,500 shares of Common
Stock, or approximately 22.58% of the 6,586,855 shares
reported to be outstanding by the Issuer on the most
recently filed Form 10-Q for the quarter ending
September 30, 1999. The number of shares of Common Stock
does not include the 2,596,108 owned by her former
spouse, which she may have the right to acquire under
the Agreement. The Reporting Person disclaims beneficial
ownership of all shares held by her former spouse.
ITEM 5(b) Number of shares of which the Reporting Person has:
(i) sole power to vote or direct vote: None
(ii) shared power to vote or direct vote: None
(iii) sole power to dispose or direct disposal of:
1,487,500 shares
(iv) shared power to dispose or direct disposal of: None
ITEM 5(c) In the last sixty days, the Reporting Person has sold
13,000 shares of the Issuer's Common Stock. Such sales
were effected pursuant to Rule 144 during the period
January 13-19, 2000 at the price of $3.50 per share.
ITEM 5(d) No other person has a right to receive or the power to
direct the receipt of dividends from or the proceeds of
any sale of the Common Stock.
ITEM 5.(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
See Item 4 "Purpose of the Transaction."
The common stock held by the Reporting Person has not been pledged.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1. Stockholders Voting Agreement, Irrevocable Proxy, and Right
of First Refusal, dated as of September 17, 1999.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: February 18, 2000.
/s/ DERRY B. MACDONALD
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Derry B. Macdonald
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CUSIP No. 73931P 10 5 Page 6 of 6
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The original statement shall be signed by each person on whose behalf
the statement is filed or his authorized representative. If the statement is
signed on behalf of a person by his authorized representative (other than an
executive officer or general partner of this filing person), evidence of the
representative's authority to sign on behalf of such person shall be filed with
the statement, provided, however, that a power of attorney for this purpose
which is already on file with the Commission may be incorporated by reference.
The name of and any title of each person who signs the statement shall be typed
or printed beneath his signature.
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE FEDERAL
CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001).
<PAGE>
EXHIBIT 1
STOCKHOLDERS VOTING AGREEMENT, IRREVOCABLE PROXY
AND RIGHT OF FIRST REFUSAL
AGREEMENT made this 17th day of September 1999 by and among John L.
Macdonald (hereinafter referred to as "JLM"), Derry Macdonald (hereinafter
referred to as "DM"), Maxwell Stolzberg as Trustee under an Irrevocable Trust
Agreement between John Macdonald and Maxwell Stolzberg dated December 15, 1995
(hereinafter referred to as "MS") (the foregoing parties to this Agreement are
hereinafter referred to jointly as the "Stockholders") and JLM Industries, Inc.
(hereinafter referred to as"JLMI").
WHEREAS, the Stockholders are the owners in the aggregate of 4,097,108
shares of the issued and outstanding shares of common stock, par value $0.00 per
share (hereinafter referred to as the "Stock") of JLMI;
WHEREAS, the Stockholders deem it to be in the best interests of JLMI and
its stockholders to retain JLM as a director of JLMI and to elect directors of
JLMI who share the vision of JLM for JLMI's future; and
WHEREAS, the Stockholders desire to enter into an agreement to be
specifically enforceable against each of them pursuant to which they agree to
vote their shares of the Stock in the manner and for the purpose specified
herein;
WHEREAS, JLMI deems it in its best interest to have the right to purchase
Stock if such shares become available as a result of the desire of one of the
Shareholders to dispose of some or all of its Stock.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto hereby agree as follows:
1. VOTING AGREEMENT. Each of the Stockholders hereby agrees to vote all of the
Stock now or hereafter registered in his or her name in favor of the following:
(a) to elect JLM as a director of JLMI.
(b) to elect such persons as JLM designates for election as directors of JLMI at
the next annual stockholders' meeting and all future meetings through and
including the annual stockholders' meeting in 2009.
(c) to otherwise vote the Stock in such manner as JLM shall deem best to improve
the liquidity and marketability of the Stock while at the same time-increasing
its value and yield with due regard for all tax consequences.
2. IRREVOCABLE PROXY. In order to insure the voting of the Stockholders in
accordance with this Agreement, each Stockholder agrees to execute an
irrevocable proxy coupled with an interest
<PAGE>
simultaneously with the execution hereof in the form of Exhibit A attached
hereto granting to JLM the right to vote, or to execute and deliver stockholder
written consents, in respect of all Stock now owned or hereafter registered in
the name of the Stockholder. It is understood and agreed that such irrevocable
proxy relates not only to the election of directors, but to all matters which
require the vote of stockholders.
3. FUTURE CORPORATE POLICY. Without limiting the discretion of JLM, the
Stockholders acknowledge that it is their express desire to improve the
liquidity and marketability of the Stock while at the same time-increasing its
value and yield with due regard for all tax consequences.
4. CHANGES IN COMMON STOCK. In the event that subsequent to the date of this
Agreement any shares or other securities are issued on, or in exchange for, any
of the shares of the Stock held by the Stockholders by reason of any stock
dividend, stock split, consolidation of shares, reclassification, or
consolidation such shares or securities shall be deemed to be Stock for purposes
of this Agreement.
5. REPRESENTATIONS OF STOCKHOLDERS. Each Stockholder hereby represents and
warrants to each of the other Stockholders that (a) he or she owns and has the
right to vote the number of shares of the Stock set forth opposite his or her
name on Exhibit B attached hereto, (b) he or she has full power to enter into
this Agreement and has not, prior to the date of this Agreement, executed or
delivered any proxy or entered into any other voting agreement or similar
arrangement other than one which has expired or terminated prior to the date
hereof and (c) he or she will not take any action inconsistent with the purposes
and provisions of this Agreement.
6. ENFORCEABILITY. Each Stockholder expressly agrees that this Agreement shall
be specifically enforceable in any court of competent jurisdiction in accordance
with its terms against each of the parties hereto.
7. SALE OF STOCK. The Stockholders reserve the right to sell their Stock free of
this agreement at such times and in such manner as is permitted by applicable
Federal and state securities laws, provided, however, that in the event a
Stockholder desires to sell five thousand (5,000) or more shares of Stock, such
Stockholder the ("Seller") shall notify the other Stockholders and JLMI (the
"Offerees") in writing of such intention, which notice shall be deemed to be an
offer to sell the number of shares of Stock set forth in the notice. Such notice
shall be sent be fax or hand delivery, as set forth in Section 8(h) below. Any
notice sent (if by facsimile) or received (if by hand delivery) prior to 6:00
p.m. Eastern time shall be deemed to be an offer to sell at the closing price of
JLMI common stock on the day the notice is sent. Any notice sent (if by
facsimile) or received if by hand delivery after 6:00 p.m. Eastern time shall be
deemed to be an offer to sell at the closing price of JLMI common stock on the
day after notice is sent. For any notice sent (if by facsimile) or received (if
by hand delivery) prior to 6:00 p.m. Eastern time, the Offerees shall have until
6:00 p.m. Eastern time on the next business day to accept the offer. For any
notices sent (if by facsimile) or received (if by hand delivery) after 6:00 p.m.
Eastern time, the Offerees shall have until 6:00 p.m. Eastern time, the Offerees
shall have until 6:00 p.m. Eastern time on the second business day following
receipt of the notice to accept the offer. The offer may be accepted in whole or
in part, by written notice delivered by fax or hand delivery, as set forth in
Section 8(h) below, stating the number of shares of Stock to be purchased. The
closing of the sale shall be on the fifth business day following the day of the
notice. If all Offerees wish to purchase such Stock, the Stockholders shall be
given priority over JLMI. If the Offerees do not accept the offer (in whole or
in part) to the extent the offer is not
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accepted the Seller is free to sell shares without restriction. JLMI shall
provide all reasonably requested assistance to effectuate such sales, including
the provision of reasonably requested opinions of counsel required by its
transfer agent or any third other party, to the extent such sales are in
accordance with applicable law.
8. GENERAL PROVISIONS.
(a) All of the covenants and agreements contained in this Agreement shall be
binding upon, and enure to the benefit of, the respective parties and their
successors, assigns, heirs, executors, administrators and other legal
representatives, as the case may be.
(b) This Agreement, and the rights of the parties hereto, shall be governed by
and construed in accordance with the laws of the State of Delaware.
(c) This Agreement may be executed in one or more counterparts, each of which
will be deemed an original but all of which together shall constitute one and
the same instrument.
(d) This Agreement shall remain in effect until the first to occur of: (i) the
day immediately preceding the 2009 annual stockholders meeting; (ii) the
termination of the Agreement in writing by the Stockholders or (iii) the day the
JLM ceases to be Chairman or Chief Executive Officer of JLM or its successor
(provided, however, if the successor of JLMI is not a publicly traded company,
this Agreement shall terminate upon the closing of the transaction in which the
successor accedes to the rights of JLMI).
(e) If any provision of this Agreement shall be declared void or unenforceable
by any court or administrative board of competent jurisdiction, such provision
shall be deemed to have been severed from the remainder of this Agreement and
this Agreement shall continue in all respects to be valid and enforceable.
(f) No waivers of any breach of this Agreement extended by any party hereto to
any other party shall be construed as a waiver of any rights or remedies of any
other party hereto or with respect to any subsequent breach.
(g) Whenever the context of this Agreement shall so require, the use of the
singular number shall include the plural and the use of any gender shall include
all genders.
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(h) Any notices given pursuant to this Agreement shall be in writing and shall
be addressed as follows:
If to Derry B. Macdonald:
Derry B. Macdonald
1047 Royal Pass Road
Tampa, Florida 33602
Facsimile: (813) 229-0818
If to John L. Macdonald:
John L. Macdonald
JLM Industries, Inc.
8675 Hidden River Parkway
Tampa, Florida 33637
Facsimile: (813) 632-3315
IN WITNESS WHEREOF, the Stockholders have executed this Agreement as of the date
first above written.
JLM Industries, Inc. /s/ JOHN L. MACDONALD
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John L. Macdonald
/s/ DERRY B. MACDONALD
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By: /s/ JOHN L. MACDONALD Derry Macdonald
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President
/s/ MAXWELL STOLZBERG
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Maxwell Stolzberg as Trustee under an
Irrevocable Trust Agreement between John
Macdonald and Maxwell Stolzberg dated
December 15, 1995
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[EXHIBIT A]
JLM INDUSTRIES, INC.
IRREVOCABLE PROXY
The undersigned agrees to, and hereby grants to John L. Macdonald an irrevocable
proxy pursuant to the provisions of Section 212 of the Delaware General
Corporation Law to vote, or to execute and deliver written consents or otherwise
act with respect to, all shares of capital stock (the "Stock") of JLM
Industries, Inc. (the "Corporation") now owned or hereafter acquired by the
undersigned as fully, to the same extent and with the same effect as the
undersigned might or could do under any applicable laws or regulations governing
the rights and powers of stockholders of a Delaware corporation in connection
with the election of directors of the Corporation as well as any other actions
which might be taken by stockholders as provided in a certain Stockholders
Voting Agreement, dated as of September 17, 1999, among the undersigned and
certain other stockholders of the Corporation. The undersigned hereby affirms
that this proxy is given as a condition of said voting agreement and as such is
coupled with an interest and is irrevocable. It is further understood by the
undersigned that this proxy may be exercised by John L. Macdonald for the period
beginning the date hereof and ending on the day immediately following the
Corporation's 2009 annual stockholders' meeting, unless sooner terminated in
accordance with the provisions of said voting agreement.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST ANY
DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK OTHER THAN A SALE AS PERMITTED UNDER
THE STOCKHOLDERS VOTING AGREEMENT.
Dated this 17 day of September, 1999.
/s/ DERRY B. MACDONALD
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(Signature of Shareholder)
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[EXHIBIT B]
STOCKHOLDERS VOTING AGREEMENT, IRREVOCABLE PROXY AND RIGHT OF FIRST REFUSAL
NUMBER OF
NAME SHARES
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Derry B. Macdonald 1,500,500
John L. Macdonald 2,596,608
Maxwell Stolzberg, Trustee 0
TOTAL SHARES 4,097,108
