Exhibit 4.14
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AMENDED AND RESTATED
COMMON AND PREFERRED STOCK PURCHASE
AND
SHAREHOLDERS' AGREEMENT
among
BT INVESTMENT PARTNERS, INC.,
MTL EQUITY INVESTORS, L.L.C.,
APOLLO INVESTMENT FUND III, LP.
APOLLO OVERSEAS PARTNERS III, L.P.
APOLLO U.K. FUND III, L.P.
AND
MTL INC.
Dated as of August 28,1998
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INDEX OF TERMS
Acceptance Period .................................................... 11
Accredited Investor .................................................. 4
AMENDMENT ............................................................ 2
Appollo .............................................................. 5
Appollo Entities ..................................................... 1
BT Partners .......................................................... 1
Capital Stock ........................................................ 1
Commission ........................................................... 2
Common Stock ......................................................... 1
Company .............................................................. 1
Drag-Along Grantees .................................................. 5
Drag-Along Notice .................................................... 5
Equity LLC ........................................................... 1
Management Shareholders Agreement .................................... 8
Offered Securities ................................................... 11
Palestra ............................................................. 2
Permitted Transfer ................................................... 5
Preemptive Notice .................................................... 11
Preemptive Right ..................................................... 11
Preferred Stock ...................................................... 1
Proposed Issuance .................................................... 11
PURCHASE AGREEMENT ................................................... 2
Purchase Notice ...................................................... 12
Tag-Along Notice ..................................................... 6
TABLE OF CONTENTS
ARTICLE I ................................................................................... 1
1.1. Purchase Price ........................................................................ 1
1.2. Representations by Purchasers ......................................................... 2
1.3. Brokers or Finders .................................................................... 4
1.4. Representations by Sell ............................................................... 4
1.5. Restrictions on Transfer .............................................................. 5
ARTICLE II................................................................................... 5
ARTICLE III ................................................................................. 6
ARTICLE IV................................................................................... 7
ARTICLE V ................................................................................... 9
5.1. Definitions............................................................................ 9
5.2. Designated Actions and Irrevocable Proxy............................................... 10
5.3. Termination............................................................................ 11
ARTICLE VI ..................................... ............................................ 11
ARTICLE VII ................................................................................. 12
7.1. Assignment ........................................................................... 12
7.2. Entire Agreement ...................................................................... 13
7.3. Notices ............................................................................... 13
7.4. Waivers: Amendments ................................................................... 14
7.8. Applicable Law: Submission to Jurisdiction ............................................ 15
7.9. Severability .......................................................................... 16
7.10. Certain Definitions .................................................................. 16
7.11. Termination .......................................................................... 16
AMENDED AND RESTATED COMMON AND PREFERRED STOCK
PURCHASE AND SHAREHOLDERS' AGREEMENT
Agreement dated as of this 28th day of August, 1998 among BT Investment
Partners, Inc., a Delaware corporation ("BT Partners"), MTL Equity Investors,
L.L.C., a Delaware limited liability company ("Equity LLC," and together with BT
Partners, the "Purchasers"), Apollo Investment Fund III, L.P., Apollo Overseas
Partners III, L.P., and Apollo U.K. Fund III, L.P. (collectively, the "Apollo
Entities") and MTL Inc., a Florida corporation ("Seller" or the "Company").
WHEREAS, the parties hereto have previously entered into a
Common Stock Purchase and Shareholders' Agreement dated as of the 9th day of
June, 1998 (the "Original Agreement");
WHEREAS, the Purchasers and Sellers desire to amend the Original
Agreement to provide for the purchase from Seller, and the sale to the
Purchasers, of certain additional newly issued shares of common stock, par value
$.01 per share (the "Common Stock") of the Company and certain newly issued
shares of 13.75% senior exchangeable preferred stock, $.01 par value per share
(the "Preferred Stock" and collectively with the Common Stock, the "Capital
Stock") of the Company, all upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
PURCHASE, SALE AND TERMS OF SHARES
1.1. Purchase Price
Seller has sold to the Purchasers pursuant to the Original Agreement
the number of original shares of Common Stock (the "Original Shares") set forth
opposite each Purchaser's name on Annex I hereto, and Seller agrees to sell, and
each Purchaser agrees to purchase from Seller, the number of additional newly
issued shares of Common Stock ("Additional Common Shams") and the number of
newly issued shares of Preferred Stock ("Preferred Shares") set forth opposite
such Purchaser's name on Annex I here (together with the Original Shares, the
"Purchased Shares") at the respective purchase prices set forth in such Annex I.
The aggregate purchase price of Purchased Shares owned or being acquired by the
Purchasers is $2,743,920, of which amount Purchasers have previously paid
$2,400,000 for the Original Shares. At the closing of the Merger (as defined
below), Seller will deliver to each Purchaser newly issued certificates for the
Additional Common Shares and the Preferred Shares. The delivery of the
certificates for the Additional Common Shares and the Preferred Shares shall be
made against delivery
of a check or checks payable to the order of Seller (or as directed by Seller),
or a transfer of funds to the account of Seller (or as directed by Seller) by
wire transfer, representing the aggregate purchase price for the Additional
Common Shares and the Preferred Shares, as payment in full of the purchase price
of such shares. Such delivery or transfer shall be conditioned upon the
consummation of the transactions contemplated by the Merger Agreement dated as
of June 23,1998 among Palestra Acquisition Corp. ("Palestra"), Chemical Xxxxxx
Corporation ("CLC") and the shareholders of CLC, as amended on July 27, 1998 and
August 25, 1998, providing for the merger of Palestra with and into CLC (the
"Merger").
1.2. Representations by Purchasers
(a) Investment Representations.
Each Purchaser represents that it is its present intention to acquire
the Additional Common Shares and Preferred Shares for its own account (and it
will be the sole beneficial owner thereof) and that the Purchased Shares have
been, are being and will be acquired by it for the purpose of investment and not
with a view to distribution or resale thereof except pursuant to registration
under the Securities Act of 1933, as amended (the "Securities Act") or exemption
therefrom. The acquisition by each Purchaser of the Purchased Shares shall
constitute a confirmation of this representation by each Purchaser. Each
Purchaser further represents that it understands and agrees that, until
registered under the Securities Act, or transferred pursuant to the provisions
of Rule 144(k) as promulgated by the Securities and Exchange Commission (the
"Commission', all certificates evidencing any of the Purchased Shares, whether
upon initial issuance or upon any transfer thereof, shall bear a legend,
prominently stamped or printed thereon, reading substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES ARE SUBJECT TO THE TRANSFER RESTRICTIONS SET
FORTH IN THE COMMON STOCK PURCHASE AND SHAREHOLDERS' AGREEMENT DATED AS OF JUNE
9,1998, AMONG BT INVESTMENT PARTNERS, INC., MTL EQUITY INVESTORS, L.L.C., APOLLO
INVESTMENT FUND III, L.P., APOLLO OVERSEAS PARTNERS III, L.P., APOLLO U.K. FUND
III, L.P. AND MTL INC. (THE "PURCHASE AGREEMENT"), AS AMENDED AND RESTATED ON
AUGUST 28, 1998 ("AMENDMENT"). THESE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE. THESE SECURITIES MAY
NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT COVERING SUCH
SECURITIES UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS,
OR THE AVAILABILITY, IN THE OPINION OF COUNSEL, OF AN EXEMPTION FROM
REGISTRATION THEREUNDER. A COPY OF THE
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PURCHASE AGREEMENT AND AMENDMENT MAY BE OBTAINED FROM THE SECRETARY OF THE
COMPANY UPON REQUEST."
(b) Access to Information.
Each Purchaser or its representative during the course of this
transaction, and prior to the purchase of any Purchased Shares, has had the
opportunity to ask questions of and receive answers from management of the
Company concerning the terms and conditions of the offering of the Purchased
Shares and documents, records, books, assets, financial condition, results of
operations and liabilities (contingent or otherwise) of the Company.
(c) General Access.
Each Purchaser or its representative has received and read or reviewed,
and is familiar with, this Agreement and the other agreements executed or
delivered herewith, including the terms of the Purchased Shares, and confirms
that all documents, records and books pertaining to such Purchaser's investment
in the Company and requested by such Purchaser or its representative have been
made available or delivered to it.
(d) Sophistication and Knowledge.
Each Purchaser or its representative has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits
and risks of the purchase of the Purchased Shares. Each Purchaser can bear the
economic risks of this investment and can afford a complete loss of this
investment.
(e) Transfer Restrictions Imposed by Securities Laws.
Each Purchaser understands that the Purchased Shares have not been
registered under the Securities Act and applicable state securities laws, and,
therefore, cannot be resold unless they are subsequently registered under the
Securities Act and applicable state securities laws unless they are subsequently
registered under the Securities Act and applicable state laws or unless an
exemption from such registration is available; each Purchaser is and must be
purchasing the Purchased Shares for investment for the account of such Purchaser
and not for the account or benefit of others, and not with any present view
toward resale or other distribution thereof. Each Purchaser agrees not to resell
or otherwise dispose of all or any part of the Shares purchased by it, except as
permitted by law and only in accordance with the express provisions of this
Agreement. The Company does not have any present intention and is under no
obligation to register the Purchased Shares under the Securities Act or
applicable state securities laws.
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(f) Lack of Liquidity.
Each Purchaser has no present need for liquidity in connection with its
purchase of the Purchased Shares.
(g) Suitability and Investment Objectives.
The purchase of the Purchased Shares by each Purchaser is consistent
with the general investment objectives of such Purchaser. Each Purchaser
understands that the purchase of the Purchased Shares involves a high degree of
risk and there may be no established market for the Company's capital stock.
(h) Accredited Investor Status.
Each Purchaser represents that it is, and Equity LLC represents that
each of its members is; an ' :Accredited Investor" as that term is defined in
Rule 501 of Regulation D promulgated under the Securities Act.
1.3. Brokers or Finders
Each Purchaser represents that no Person has or will have, as a result
of the transactions contemplated by this Agreement, any right, interest or valid
claim against or upon the Company for any commission, fee or other compensation
as a finder or broker because of any act or omission by such Purchaser or its
respective agents.
1.4. Representations by Seller
(a) Ownership.
Upon the effectiveness of the transfers contemplated herein, each
Purchaser will own the Purchased Shares free and clear of all liens, charges,
encumbrances, pledges or other security interests.
(b) Court Orders.
(c) Capitalization
Immediately following the consummation of the transaction contemplated
by the Merger, Sellers authorized capital will consists of (i) 15,000,000
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shares of Common Stock of which 2,000,000 shares will be issued and outstanding
(excluding any shares to be issued under Company option plans or any employment
agreements) and (ii) 5,000,000 shares of preferred xxxxx, x.X0 par value, of
which 155,000 shares will be issued and outstanding.
1.5. Restrictions on Transfer
Whether or not permitted under the Securities Act, no Purchased Shares
may be pledged, hypothecated, sold, transferred or otherwise disposed of, except
as expressly provided in this Agreement, by will or by the laws of descent and
distribution. Each Purchaser agrees not to distribute the Purchased Shares to
its members or shareholders, as the case may be, except as may be required by
law. In case of a transfer of any of the Purchased Shares pursuant to the
foregoing, the transferee must execute an agreement to be bound by provisions of
this Agreement as if he were an original party hereto. The foregoing
restrictions shall not prohibit sales by any Purchaser (a "Permitted Transfer")
to the Company or an Apollo Entity or an affiliate thereof (collectively,
"Apollo").
ARTICLE II
DRAG-ALONG RIGHT
(a) If Apollo (the "Drag-Along Grantees") transfer to any person or
persons (other than an affiliate thereof ), pursuant to a stock sale, merger or
otherwise, shares of Capital Stock then held by such Drag-Along Grantees,
Drag-Along Grantees shall be entitled, at their option, to require each
Purchaser to sell an Article II Equivalent Portion (as defined) of all Common
Stock (in the event Apollo proposed to transfer Common Stock) and/or Preferred
Stock (in the event Apollo has proposed to transfer Preferred Stock) held by
such Purchaser, by providing each Purchaser with written notice ("Drag-Along
Notice") at least fifteen days prior to consummation of the proposed
transaction, setting forth in reasonable detail the material terms and
conditions of the proposed transaction or offering, and the price per share at
which each Purchaser shall be required to sell its shares of Preferred and/or
Common Stock, as the case may be (which price per share shall be equal to the
same price per share that Drag-Along Grantees shall receive pursuant to the
proposed transaction). An "Article II Equivalent Portion" shall mean with
respect to each Purchaser (i) in the case of Common Stock, that portion of all
shares of Common Stock then held by such Purchaser expressed as a fraction where
the numerator equals the number of shares of Common Stock proposed to be sold by
Drag-Along Grantees pursuant to the Drag-Along Notice and the denominator equals
all shares of Common Stock held by the Drag-Along Grantees and (ii) in the case
of Preferred Stock, that portion of shares of Preferred Stock then held by such
Purchaser expressed as a fraction where the numerator equals the number of
shares of Preferred Stock proposed to be sold by the Drag-Along Grantees
pursuant to the Drag-Along Notice and the denominator equals all shares of
Preferred Stock held by the Drag-Along Grantees.
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(b) At the closing of the proposed transaction (notice of the date,
place and time of which shall be designated by Drag-Along Grantees and provided
to each Purchaser in writing at least five business days prior thereto), each
Purchaser shall deliver certificates evidencing the shares of Capital Stock to
be sold by such Purchaser, duly endorsed for transfer to the proposed
transferee, against the purchase price therefor. Such shares of Capital Stock
shall be delivered free and clear of all liens, charges, encumbrances and other
security interests. Drag-Along Grantees shall have no liability or obligation to
deliver the purchase price payable pursuant to this Article II, except to the
extent that Drag-Along Grantees receive the consideration thereof from the
proposed purchaser. All consideration payable pursuant to this Section shall be
payable in the same form as the consideration received from the Purchaser,
provided. that each Purchaser shall not be required pursuant to the terms of
such sale to accept any consideration that would cause such Purchaser to have a
Regulatory Problem. In case of a potential Regulatory Problem, the Drag Along
Grantees may, at their option, elect to pay or cause to be paid to such
Purchaser the cash equivalent of the consideration payable pursuant to this
Article II, as determined in good faith by the Drag Along Grantees, in lieu of
the consideration offered by the offeree. For purposes hereof, a "Regulatory
Problem" shall mean, with respect to any Person, any set of facts, events or
circumstances the existence of which would cause such Person to believe that
there is a substantial risk of assertion by a governmental entity (which belief
shall be based on an opinion of counsel) that such Person is or would be in
violation of the Bank Holding Company Act of 1956, as amended by Regulation Y
promulgated thereunder.
(c) A Drag-Along Grantee may assign its rights pursuant to this Article
II to Seller or any affiliate or successor of Seller.
ARTICLE III
TAG-ALONG RIGHT
(a) From and after the time the Threshold (as defined below) has been
reached, and to the extent in excess thereof, if Apollo transfers to any person
or persons (other than an affiliate thereof) shares of Capital Stock, then (i)
at least fifteen business days prior to the consummation of the proposed
transaction Apollo shall give written notice ("Tag-Along Notice") setting forth
in reasonable detail the material teens and conditions of the proposed transfer,
the number of shares of Common and/or Preferred Stock to be sold and the price
per share at which Apollo is selling and (ii) each Purchaser shall have the
right to include an Article III Equivalent Portion (as defined) of all Common
Stock (in the event Apollo proposed to transfer Common Stock) and/or Preferred
Stock (in the event Apollo has proposed to transfer Preferred Stock) held by
such Purchaser in the proposed transaction by providing a written notice of
exercise to the Apollo Entities at any time on or before five business days
following delivery of the Tag-Along Notice to such Purchaser. An "Article III
Equivalent Portion" shall mean with respect to each Purchaser (i) in the case of
Common Stock, that portion of all shares of Common Stock then held by such
Purchaser expressed as a fraction where the
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numerator equals the number of shares of Common Stock proposed to be sold by
Apollo pursuant to the Tag-Along Notice and the denominator equals all shares of
Common Stock then held by Apollo and (ii) in the case of Preferred Stock, that
portion of shares of Preferred Stock then held by such Purchaser expressed as a
fraction where the numerator equals the number of shares of Preferred Stock
proposed to be sold by Apollo pursuant to the Tag-Along Notice and the
denominator equals all shares of Preferred Stock then held by Apollo.
(b) At the closing of the proposed transaction (notice of the date,
place and time of which shall be designated by the Apollo Entities and provided
to each Purchaser in writing at least five business days prior thereto), each
Purchaser shall deliver certificates evidencing the shares of Common Stock owned
by such Purchaser, duly endorsed for transfer to the proposed purchaser, against
delivery of the purchase price therefor. Such shares of Common Stock shall be
delivered free and clear of all liens, charges, encumbrances and other security
interests. Apollo shall not have any liability or obligation to deliver the
purchase price payable pursuant to this Section, except to the extent that
Apollo receives the consideration thereof from the proposed purchaser. All
consideration payable pursuant to this Section shall be payable in the same form
as the consideration received from each Purchaser.
ARTICLE IV
INCIDENTAL REGISTRATION
(a) From and after the time the Threshold has been reached, and to the
extent in excess thereof, if the Company at any time proposes to register any
Capital Stock under the Act for sale to the public for the account of Apollo
(except with respect to registration statements on a form which is not available
for registering Capital Stock for sale to the public), each such time it will
give at least ten days prior written notice to each Purchaser of its intention
so to do including the number of shares of Common and/or Preferred Stock
proposed to be registered by Apollo. Upon the written request of any such
Purchaser, received by the Company within five days after the giving of any such
notice by the Company, to register up to its Article IV Equivalent Portion (as
defined) of Common Stock (in the event the Company has proposed to register
Common Stock for the account of Apollo) and/or Preferred Stock, (in the event
the Company has proposed to register Preferred Stock for the account of Apollo)
held by such Purchaser (which request shall state the intended method of
disposition thereof), the Company will use all commercially reasonable efforts
to cause the shares of Common and/or Preferred Stock, as applicable, as to which
registration shall have been so requested to be included in the securities to be
covered by the registration statement proposed to be filed by the Company, all
to the extent requisite to permit the sale by such Purchaser (in accordance with
its written request) of such shares of Common and/or Preferred Stock so
registered. Alternatively, the Company may, in its sole discretion, include such
shares of Common or Preferred Stock in a separate registration statement to be
filed concurrently with the registration statement for the account of Apollo to
be filed by the Company. In the event
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that any registration pursuant to this Article IV shall be, in whole or in part,
an underwritten public offering of shares of Common and/or Preferred Stock, the
number of shares of Common and/or Preferred Stock to be included in such an
underwriting may be reduced (pro rata among the requesting Purchasers and Apollo
based upon the number of shares of Common Stock (in the event the Company has
proposed to register Common Stock for the account of Apollo) and/or Preferred
Stock (in the event the Company has proposed to register Preferred Stock for the
account of Apollo), owned by such Purchasers and Apollo) due to (i) the
provisions of any registration rights or similar agreement between the Company
and any Apollo Entity or between the Company and any management shareholders (it
being understood that the Apollo Entities and certain management shareholders
shall have pro rata rights with respect to incidental registration rights
pursuant to (x) the registration rights agreement by and among the Company and
the Apollo Entities, dated the date hereof, and (y) that certain shareholders
agreement, dated as of February 10,1998, among the Company, certain management
shareholders and the Apollo Entities (the "Management Shareholders' Agreement")
or (ii) underwriter market limitations if, and to the extent, that the managing
underwriter advises the Company that in its opinion such inclusion would
adversely affect the marketing of the securities to be sold by the Company
therein. In addition, if the managing underwriter so advises, for any reason,
against the inclusion of all or any portion of shares or Common and/or Preferred
Stock owned by Purchasers in a public offering, then the Purchasers shall only
have the right to register shares of Common and/or Preferred Stock therein as so
advised by the managing underwriter. An "Article IV Equivalent Portion" shall
mean with respect to each Purchaser (i) in the case of Common Stock, that
portion of shares of Common Stock then held by such Purchaser expressed as a
fraction where the numerator equals the number of shares of Common Stock
proposed to be registered by Apollo pursuant to the notice contemplated by this
paragraph (a) and the denominator equals all shares of Common Stock, then held
by Apollo and, (ii) in the case of Preferred Stock, that portion of shares of
Preferred Stock then held by such Purchaser expressed as a fraction where the
numerator equals the number of shares of Preferred Stock proposed to be
registered by Apollo pursuant to the notice contemplated by this paragraph (a)
and the denominator equals all shares of Preferred Stock, then held by Apollo.
(b) In connection with each registration pursuant to paragraph (a)
covering a Public Offering, each Purchaser selling any stock pursuant thereto
agrees to (i) enter into a written agreement with the managing underwriter under
the same terns and conditions as apply to the Company or the selling
shareholders, as applicable, or as is otherwise customary in offerings of this
type and (ii) furnish to the Company in writing such information with respect to
themselves and the proposed distribution by them as reasonably shall be
necessary and shall be requested by the Company in order to comply with federal
and applicable state securities laws.
(c) If, at any time after giving notice of its intention to register
any stock pursuant to this Article N and prior to the effective date of the
registration statement filed in connection with such registration, the Company
and/or Apollo shall determine for any reason not to register any such stock, the
Company shall give written notice to the Purchasers and, thereupon, shall be
relieved of its obligation to register any shares of
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stock in connection with such registration. If the number of shares to be
registered by Apollo is changed, the Article IV Equivalent Proportion shall be
appropriately adjusted.
(d) All expenses incurred by the Company in complying with this Article
IV, including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or "blue sky" laws, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars and costs of insurance, but excluding any Selling
Expenses, are herein referred to as "Registration Expenses." "Selling Expenses"
as used herein mean all underwriting discounts and selling commissions
applicable to the sale of Shares.
The Company will pay all Registration Expenses in connection with each
registration statement under this Article IV. All Selling Expenses in connection
with each registration statement under this Article IV shall be borne by the
participating sellers of shares of stock in proportion to the number of shares
sold by each, or by such participating sellers of shares of stock other than the
Company (except to the extent the Company shall be a seller of shares of Common
Stock) as they may agree. In addition, the participating Purchasers shall be
responsible for fees and disbursements of their counsel.
ARTICLE V
VOTING PROXY
5.1. DEFINITIONS
(a) "Designated Actions" means (i) the voting of any Common Stock and
any action to be taken -with respect to a matter properly brought before the
stockholders of the Company holding shares of Common Stock, including without
limitation the election of members of the Board of Directors of the Company,
(ii) any action to be taken by any Holder in its capacity as a stockholder of
the Company under this Agreement, including without limitation any consent or
waiver relating to this Agreement and (iii) all actions taken in connection with
any of the actions referred to in clauses (i) and (ii) above.
(b) "Designated Shareholders" means each Purchaser and each Person to
whom the Common Stock of such Purchaser are sold or transferred pursuant to the
first two sentences of Section 1.5 above.
(c) "Proxyholder" means Xxxxxx X. Xxxxxx or any additional or
successor Proxyholder as may be appointed by the Apollo Entities by written
notice to the Purchasers and the Company.
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5.2. DESIGNATED ACTIONS AND IRREVOCABLE PROXY
(a) Each Designated Shareholder, so long as he, she or it owns any
Capital Stock, hereby agrees to take all Designated Actions in the manner that
the Proxy holder, in his sole and absolute discretion, shall direct, at any
annual or special meeting of stockholders of the Common Stock, at any and all
adjournments thereof, and on any other occasion in respect of which the consent
of such Designated Shareholder with respect to his, her or its shares of Capital
Stock may be given or may be requested or solicited by the Company or any other
Person, whether at a meeting, pursuant to the execution of a written consent,
under the Purchase Agreement or otherwise, for all purposes in connection with
any Designated Action, and such Designated Shareholder hereby ratifies and
confirms all that such Proxy holder may do by virtue hereof.
(b) For purposes of effecting any Designated Action, each Designated
Shareholder does hereby irrevocably constitute and appoint the Proxyholder, his,
her or its true and lawful attorney, agent and proxy for and in his, her or its
name, place and stead, with the exclusive right to take all Designated Actions,
in such Proxyholder's sole and absolute discretion, at any annual or special
meeting of stockholders of the Company, at any and all adjournments thereof, and
on any other occasion in respect of which the consent of such Designated
Shareholder may be given or may be requested or solicited by the Company or any
other Person, whether at a meeting, pursuant to the execution of a written
consent, under the Purchase Agreement or otherwise, for all purposes in
connection with any Designated Action, and such Designated Shareholder hereby
ratifies and confirms all that the Proxyholder may do by virtue hereof. Each
Designated Shareholder agrees with the Proxyholder that, without the prior
written consent of the Proxyholder, he, she or it will not, so long as this
Agreement shall be in effect with respect to any such Designated Shareholder,
take any Designated Action, appoint any person other than the Proxyholder as
his, her or its attorney, agent or proxy with respect to such shares of Capital
Stock, or take any action inconsistent with the appointment of the Proxyholder
as his, her or its lawful attorney, agent and proxy, or the exercise by the
Proxyholder of the powers granted to him, hereunder.
(c) The parties hereto agree that, in taking or giving directions for
the taking of any Designated Action or in otherwise acting hereunder, the
Proxyholder shall have no responsibility in respect of the management of the
Company by directors for whom he shall have voted or FOR ANY ACTION TAKEN by any
such directors or for any action taken pursuant to any consent given or vote
cast by him or other action taken by him, and the Proxyholder's powers herein
shall be discretionary and any of them may be exercised from time to time when
he sees fit and without leave of any court or any other Person and the
Proxyholder may refrain from exercising any powers or rights from time to time
as he sees fit in each case irrespective of any relationship that the
Proxyholder or any of his Affiliates may have with any of the parties hereto
otherwise than pursuant to this Agreement.
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(d) The powers granted pursuant to this Section 5.2, and the proxy
granted pursuant hereto, are coupled with an interest and shall be irrevocable
during the term of this Article V.
53. Termination
The agreements contained in this Article V shall terminate and be of no
further force and effect as of the earlier of (i) tenth anniversary of the date
hereof and (ii) the termination of this Agreement as contemplated by Section
7.11 below.
ARTICLE VI
PREEMPTIVE RIGHTS
(a) In the event that the Company proposes to issue (a "Proposed
Issuance") any Common Stock and/or Preferred Stock to Apollo, other than
pursuant to the exceptions specified in paragraph (b) below, the Company shall
deliver a notice, with respect to such Proposed Issuance (the "Preemptive
Notice"), to each Purchaser setting forth the period of time within which the
Preemptive Right must be exercised (the "Acceptance Period") and the price,
terms and conditions of the Proposed Issuance. Each Purchaser shall have the
right (the "Preemptive Right"), exercisable as hereinafter provided, to
participate in such issuance of Common Stock and/or Preferred Stock, as
applicable, ("Offered Securities") on a pro rata basis in accordance with the
respective aggregate number of shares of Common Stock and/or Preferred Stock
held by such Purchaser on the date of such notice from the Company by purchasing
an amount of such Common Stock, in the event Common Stock is being issued to
Apollo, and/or Preferred Stock, in the event Preferred Stock is being issued to
Apollo, equal to the number of shares of Common Stock and/or Preferred Stock, as
applicable, to be sold to Apollo pursuant to the Proposed Issuance multiplied by
a fraction, the numerator of which shall be the aggregate number of shares of
Common Stock or Preferred Stock, as the case may be, owned by such Purchaser on
the date of such notice and the denominator of which shall be the total number
of shares of Common Stock or Preferred Stock, as the case may be, outstanding on
such date, such purchase to be at the same price and on the same terms and
conditions as the Proposed Issuance. The number of shares of Common Stock and/or
Preferred Stock to be sold to Apollo pursuant to the Proposed Issuance shall be
calculated after first taking into account the effect of the preemptive rights
granted by the Company to certain management shareholders pursuant to the
Management Shareholders Agreement.
(b) Anything to the contrary notwithstanding, the Preemptive Rights
provided for herein shall not be applicable to: (i) any Proposed Issuance of
Common Stock to Apollo, in an amount equal to (A) the number of shares of Common
Stock previously sold or otherwise transferred by Apollo to members of
management of the Company less (B) the number of shares of Common Stock
previously purchased by
11
Apollo pursuant to the provisions of this clause (i); provided that in no event
shall Apollo be entitled to repurchase Common Stock with an aggregate purchase
price in excess of $3,500,000 pursuant to the provisions of this clause (i); and
(ii) any stock split or Proposed Issuance of Common Stock and/or Preferred Stock
as a dividend.
(c) The Preemptive Rights shall be exercisable by delivery of notice
(the "Purchase Notice") to the Company given within the Acceptance Period set
forth in the Preemptive Notice. If a Purchaser shall fail to respond to the
Company within the Acceptance Period, such failure shall be regarded as a
rejection of such Purchaser's right to exercise such Purchaser's Preemptive
Right. The closing of any purchase by the Purchasers under this Article VI shall
be held at such time and place upon which the parties to the transaction may
agree. At such closing, the Purchasers participating in the purchase shall
deliver by certified bank check, payment in full for such Common Stock and/or
Preferred Stock and all parties to the transaction shall execute such additional
documents as are otherwise deemed necessary or appropriate by the Company. At
such closing, the Company may issue and sell to Apollo such portion of the
Common Stock and/or Preferred Stock which has not been purchased by Purchasers
pursuant to the exercise of their Preemptive Rights at the same price and on the
same terms and conditions as the Common Stock and/or Preferred Stock sold or
proposed to be sold to the Purchasers.
(d) In the event of a Proposed Issuance of Common Stock and/or
Preferred Stock, which Proposed Issuance is subject to the Preemptive Rights
under this Article VI and which is offered only in combination with the purchase
of debt, debt securities or securities convertible or exchangeable into debt,
then the Preemptive Rights shall apply to the combination and a Purchaser
exercising his Preemptive Right shall be entitled and required to purchase his
pro rata share of both the debt (or debt exchangeable securities) and equity
components of such combination on the basis set forth above.
ARTICLE VII
MISCELLANEOUS
7.1. ASSIGNMENT
This Agreement shall bind an inure to the benefit of the parties
hereto and their respective successors, assigns, heirs and personal
representatives. Unless otherwise expressly provided in this Agreement, neither
this Agreement nor any right or obligation hereunder of any party may be
assigned or delegated without the prior written consent of the other parties
hereto, provided, that any of the Appollo Entities may assign this Agreement to
an affiliate.
12
7.2. ENTIRE AGREEMENT
This Agreement and the other writings referred to herein or
delivered pursuant hereto which form a part hereof contain the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior and contemporaneous arrangements or understandings with respect thereto.
7.3. NOTICES
All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given (a) when delivered personally to
the recipient, (b) one business day after being sent by reputable overnight
courier (charges prepaid) (regardless of whether the recipient refuses to accept
delivery), (c) five business days after being sent to the recipient by certified
or registered mail, return receipt requested and postage prepaid (regardless of
whether the recipient refuses to accept delivery) or (d) when sent to the
recipient by facsimile (followed promptly by courier or certified or registered
mail delivery). Deliveries should be directed as follows:
If to the Seller or the Apollo Entities, to:
c/o Apollo Management, L.P.
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
with a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxxx, Esq.
13
If to the Purchasers, to:
BT Investment Partners, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Xxx Xxxx
and
MTL Equity Investors, L.L.C.
c/o Merchant GP, Inc.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: Telecopy:
Attention: Xxxx X. Xxxxxxxxx
Xxxx Xxxxxxxxx
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 212-269-5420
Attention: Xxxxx X. Xxxxx, Esq.
7.4. WAIVERS; AMENDMENTS
(a) No failure or delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
(b) Any provision of this Agreement may be waived if, but only if, such
wavier is in writing and is signed, by the party or parties against whom the
wavier is to be effective. No provision of this Agreement may be amended or
otherwise modified except by an instrument in writing executed by the parties
hereto.
14
7.5. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and each
such counterpart hereof shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
7.6. EXPENSES
All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
7.7. REMEDIES
Each party hereto acknowledges that the remedies at law of the
other parties for a breach or threatened breach of this Agreement would be
inadequate and, in recognition of this fact, any party to this Agreement,
without posting any bond, and in addition to all other remedies which may be
available, shall be entitled to obtain equitable relief in the form of specific
performance, a temporary restraining order, a temporary or permanent injunction
or any other equitable remedy which may then be available. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
7.8. APPLICABLE LAW: SUBMISSION TO JURISDICTION
This Agreement (other than the provisions of Article V which shall be
construed in accordance with and governed by the laws of the State of Delaware)
shall be construed in accordance with and governed by the laws of the State of
New York, without regard to the conflicts of law rules of such state. Each of
the parties hereto hereby consents to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York, or any other
New York State court sitting in New York, New York (and of the appropriate
appellate courts therefrom) over any suit, action or proceeding arising out of
or relating to this Agreement. Each party hereto irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue in any such court or that any such proceeding which
is brought in accordance with this Section has been brought in an inconvenient
forum. Subject to applicable law, process in any such proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing and subject to applicable law,
each party agrees that service of process on such party as provided in Section
6.3 shall be deemed effective service of process on such party as provided in
Section 6.3 shall be deemed effective service of process on such party. Nothing
herein shall affect the right of any party to serve legal process on such party.
Nothing herein shall affect the right of any party to serve legal process in any
other manner permitted by law or at equity or to enforce in any lawful manner a
judgment obtained in one jurisdiction in any other jurisdiction. WITH RESPECT TO
A PROCEEDING IN ANY SUCH COURT, EACH OF THE PARTIES IRREVOCABLY WAIVES AND
RELEASES TO THE OTHER ITS RIGHT TO A
15
TRIAL BY JURY, AND AGREES THAT IT WILL NOT SEEK A TRIAL BY JURY IN ANY SUCH
PROCEEDING.
7.9. SEVERABILITY
The invalidity or unenforceability of any provisions of this
Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of the remainder of this Agreement in such jurisdiction or the
validity, legality or enforceability of this Agreement, including any such
provision, in any other jurisdiction, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the fullest extent
permitted by law.
7.10. CERTAIN DEFINITIONS
(a) For purposes of this Agreement, a "Public Offering" means
any underwritten public offering of equity securities of the Company pursuant to
an effective registration statement under the Securities Act other than pursuant
to a registration statement on Form S-4 or S-8 or any successor or similar form.
(b) For the purposes of this Agreement, the "Threshold" means
the public or private sale by Apollo in any one or more transactions of $10
million, in the aggregate, of Capital Stock.
7.11. TERMINATION
This Agreement shall terminate at such time that Apollo shall
own less than 10% of the Common Stock on a fully diluted basis.
16
IN WITNESS WHEREOF, the parties hereto have caused this Common
and Preferred Stock Purchase Agreement to be executed as of the date first
above written.
MTL INC.
By:
----------------------------
Name:
Title:
BT INVESTMENT PARTNERS, INC.
By:
----------------------------
Name:
Title:
MTL EQUITY INVESTORS, L.L.C.
By:
----------------------------
Name:
Title:
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P.,
its General Partner
By: Apollo Capital Management II,
Inc.,
its General Partner
By:
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Common and
Preferred Stock Purchase Agreement to be executed as of the date first above
written.
MTL INC.
By:
----------------------------
Name:
Title:
BT INVESTMENT PARTNERS, INC.
By: /s/ Xxxxxxx X. Xxxxx, III
----------------------------
Name: Xxxxxxx X. Xxxxx, III
Title: Managing Director
MTL EQUITY INVESTORS, L.L.C.
By:
----------------------------
Name:
Title:
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P.,
its General Partner
By: Apollo Capital Management II,
Inc.,
its General Partner
By:
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Common and
Preferred Stock Purchase Agreement lo be executed as of the date first above
written.
MTL INC.
By:
----------------------------
Name:
Title:
BT INVESTMENT PARTNERS, INC.
By:
----------------------------
Name:
Title:
MTL EQUITY INVESTORS, L.L.C.
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------
Name:
Title:
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P.,
its General Partner
By: Apollo Capital Management II,
Inc.,
its General Partner
By:
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this Common and
Preferred Stock Purchase Agreement lo be executed as of the date first above
written.
MTL INC.
By:
----------------------------
Name:
Title:
BT INVESTMENT PARTNERS, INC.
By:
----------------------------
Name:
Title:
MTL EQUITY INVESTORS, L.L.C.
By:
----------------------------
Name:
Title:
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P.,
its General Partner
By: Apollo Capital Management II,
Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
APOLLO OVERSEAS PARTNERS, III,
L.P.
By: Apollo Advisors II, L.P.,
its General Partner
By: Apollo Capital Management II,
Inc., its General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
APOLLO U.K. FUND, III, L.P.
By: Apollo Advisors II, L.P.,
its General Partner
By: Apollo Capital Management II,
Inc., its General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
ANNEX I
To Additionl
Purchase Original Common Preferred
Purchaser Price* Shares Shares Shares
--------- ------ ------ ------ ------
BT INVESTMENT $1,543,920 30,000 3,973 1,850
PARTNERS, INC.
MTL EQUITY $1,200,000 30,000 0 0
INVESTORS, L.L.C.
*Of which amount each of BT Investment Partners, Inc. and MTL Equity Investors,
