MT INVESTORS INC.
FORM OF GMC SUBSCRIPTION AGREEMENT
AGREEMENT made as of [Date] by and between MT
Investors Inc., a Delaware corporation (the "Corporation"), and [Name] (the
"Subscriber").
WHEREAS, the Corporation has agreed to acquire all of the
issued and outstanding stock or other equity interests and certain indebtedness
of the entities comprising the Xxxxxxx-Xxxxxx Group (collectively,
"Xxxxxxx-Xxxxxx") of AG Fur Prazisionsinstrumente Greifensee, Switzerland
("Seller"), pursuant to that certain Stock Purchase Agreement, dated as of April
2, 1996, among Seller, Ciba-Geigy AG and the Corporation (the "Purchase
Agreement"); and
WHEREAS, at the Closing referred to herein, the authorized
capital stock of the Corporation will consist of 2,233,117 shares of Class A
Common Stock (the "Class A Stock"), 10,000 shares of Class B Common Stock (the
"Class B Stock") and 532,859 shares of Class C Common Stock (the "Class C
Stock"), all with par value $.01 per share, with the respective terms and
provisions set forth in the proposed form of Restated Certificate of
Incorporation and Amendment to Restated Certificate of Incorporation of the
Corporation, which, together with the By-Laws of the Corporation, are attached
hereto as Exhibit A; and
WHEREAS, in connection with, and in order to provide part of
the funds for, the acquisition of Xxxxxxx-Xxxxxx, the Corporation proposes to
issue and sell (i) 1,200,000 shares of Class A Stock pursuant to subscription
agreements to be entered into with stockholders of AEA Investors Inc. ("AEA")
and certain personnel of AEA (the "Participants' Subscription Agreements"), (ii)
95,000 shares of Class A Stock, 500 shares of Class B Stock and 26,643 shares of
Class C Stock to Ciba-Geigy AG pursuant to a subscription agreement (the "Ciba
Subscription Agreement"), (iii) 455,000 shares of Class A Stock and 130,001
shares of Class C Stock to certain other investors pursuant to subscription
agreements (the "Investors' Subscription Agreements"), (iv) approximately 24,157
shares of Class A Stock and approximately 6,902 shares of Class C Stock to
members of middle management of Xxxxxxx-Xxxxxx or any of its affiliates pursuant
to subscription agreements (the "Middle Management Subscription Agreements"),
(v) approximately 70,000 shares of Class A Stock and approximately 20,000 shares
of Class C Stock to other employees of Xxxxxxx-Xxxxxx or any of its affiliates
pursuant to subscription agreements (the "Employee Subscription Agreements,")
and (vi) approximately 53,489 shares of Class A Stock and approximately 15,282
shares of Class C Stock to members of senior management of Xxxxxxx-Xxxxxx or any
of its affiliates pursuant to this Agreement and subscription agreements similar
to this Agreement (the "Other GMC Subscription Agreements," and, together with
the Participants' Subscription Agreements, the Ciba Subscription Agreement, the
Investors' Subscription Agreements, the Middle Management Subscription
Agreements and the Employee Subscription Agreements, the "Other Subscription
Agreements"); and
WHEREAS, the Subscriber wishes to purchase at the Closing
"Class_A_Shares" shares of Class A Stock for $100 per share, in cash, and
"Class_C_Shares" shares of Class C Stock for approximately $.03 per share, in
cash, and thereby make an investment in the Corporation and the Corporation
wishes to issue and sell the same to the Subscriber, upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, the parties agree as follows:
Section 1. Agreement to Sell and Purchase Securities. The
Corporation agrees to sell to the Subscriber, and the Subscriber subscribes and
agrees to pay for, upon the terms and conditions hereinafter set forth,
"Class_A_Shares" shares of the Class A Stock, at a purchase price of $100 per
share, and "Class_C_Shares" shares of the Class C Stock, at a purchase price of
approximately $.03 per share. The shares of the Class A Stock and the Class C
Stock to be purchased by the Subscriber pursuant to this Agreement are
hereinafter sometimes referred to as the "Shares."
Section 2. Closing. The issuance and delivery of the Shares to
the Subscriber, and all other transactions contemplated hereby and under the
Purchase Agreement shall take place at a closing (the "Closing") at the offices
of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 at 10:00 a.m., New York time, on or about October 15, 1996 or at such
other place or such other time or date as the Corporation and the Subscriber may
agree in writing. At the Closing, the Subscriber shall pay for the Shares in
immediately available funds or by such other form of payment acceptable to the
Corporation and the Corporation will issue and deliver to him certificates for
the Shares being purchased by him. The time and date at and upon which the
Closing occurs is herein called the "Closing Date."
Section 3. Representations and Warranties by the
Corporation. The Corporation represents and warrants to the Subscriber that:
(a) At the time of the Closing, the Corporation will own all
of the issued and outstanding shares of stock of Xxxxxxx-Xxxxxx Holding Inc.
("Holding"); and none of the Corporation or Holding will have carried on any
business or had any revenues or income. The Corporation will not have any
liabilities of any nature whatsoever, except for (i) the expenses which it has
paid or incurred in connection with its incorporation, organization and
financing, and for legal and audit services and any other miscellaneous expenses
incident to its pre-operating period; (ii) the transactions under the Other
Subscription Agreements; and (iii) liability relating to the acquisition of
Xxxxxxx-Xxxxxx.
(b) The Corporation has delivered to the Subscriber a copy of
the confidential memorandum entitled "Executive Summary Concerning the
Acquisition of the Entities Comprising the Xxxxxxx-Xxxxxx Group by MT Investors
Inc. - September 1996" (the "Memorandum") and the Preliminary Prospectus, dated
September 16, 1996, which forms a part of the Registration Statement on Form S-1
filed by MT Acquisition Corp. ("Acquisition") and Holding with the Securities
and Exchange Commission with respect to the offering of the debt securities of
Acquisition.
(c) The Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
all requisite corporate power and authority for the transactions contemplated by
this Agreement.
(d) In addition to the shares of the Class A Stock, the Class
B Stock and the Class C Stock being purchased pursuant to this Agreement and the
Other Subscription Agreements, the only other shares of any class of stock of
the Corporation which are and/or will be outstanding at the date of issuance of
the Shares are 9,500 shares of the Class B Stock and 333,358 shares of the Class
C Stock, all of which have been duly and validly issued for nominal
consideration. All of the outstanding shares of the Class B Stock will be owned
by AEA and its management employees and/or certain of its stockholders and
Ciba-Geigy AG and all of the outstanding shares of the Class C Stock as
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of the date of issuance of the Shares will be owned by the subscriber
under this Agreement and the Other Subscription Agreements, AEA, AEA
stockholders and management employees of AEA or their associates.
(e) The Corporation has full power and authority to enter into
this Agreement, and to issue and deliver the Shares and to incur and perform the
obligations provided for herein, all of which have been duly authorized by all
necessary corporate action. The execution and performance of this Agreement does
not, and the issuance of the Shares will not, violate any provision of any
applicable law or the Restated Certificate of Incorporation or the By-Laws of
the Corporation or any agreement or instrument by which it is bound and will not
result in the creation of any encumbrance or charge upon any of its assets. This
Agreement constitutes the valid and legally binding obligation of the
Corporation, enforceable in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally or by general equitable
principles.
(f) Shares of the Class A Stock and the Class C Stock, when
issued and delivered pursuant to this Agreement, will be validly issued, fully
paid and non-assessable.
(g) Except as described in the Preliminary Prospectus, there
is no action, proceeding or investigation pending or, to the knowledge of the
Corporation, threatened, nor is there any basis, to its knowledge, for any
action, proceeding or investigation, against it or any of its properties or
assets.
Section 4. Representations and Warranties of Subscriber.
The Subscriber for himself represents, warrants and agrees that:
(a) The Subscriber is acquiring the Shares to be acquired by
him hereunder for his own account, for investment and not with a view to the
sale or distribution thereof, nor with any present intention of distributing or
selling the same; subject, nevertheless, to any requirement of law that the
disposition of property shall at all times be within the Subscriber's control.
(b) The Subscriber will not sell, assign, transfer, pledge, or
otherwise dispose of any of the Shares acquired by him hereunder unless and
until the same are registered under the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable state securities law, or an exemption from
such registration is available, and until the Corporation shall have received a
written opinion of counsel to the Corporation that the disposition is in
compliance with the requirements of the Securities Act and any applicable state
securities law.
(c) The Subscriber acknowledges and agrees that the Shares
will contain an appropriate legend restricting the transfer thereof. The Shares
are not registered under the Securities Act, and except as expressly provided in
Section 6 of this Agreement, the Subscriber will have no right to require such
registration and must bear the economic risk of the Subscriber's investment for
an indefinite period of time. There is not now and there may never be any public
market for the Shares, and the Subscriber cannot now and may never be able to
avail himself of the benefits of Rule 144 adopted by the Securities and Exchange
Commission with respect to the resale of the Shares.
(d) The Subscriber has the full legal right and power and all
authority and approval required to enter into, execute and deliver this
Agreement and to perform fully his obligations hereunder. This Agreement has
been duly executed and delivered and is
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the valid and binding obligation of the Subscriber enforceable in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally or by general
equitable principles. The execution and delivery of this Agreement by
the Subscriber and the performance by the Subscriber of this Agreement
in accordance with its terms and conditions will not (i) require the
approval or consent of any other person, including without limitation
the approval or consent of any governmental or regulatory body; or (ii)
conflict with or result in any breach or violation of any of the terms
and conditions of, or constitute (or with notice or lapse of time or
both constitute) a default under, any statute, regulation, order,
judgment or decree applicable to the Subscriber, or any instrument,
contract or other agreement to which the Subscriber is a party or by or
to which the Subscriber is bound or subject.
(e) The Subscriber is an Executive Officer of the Corporation
and is familiar with its business and prospects. The Subscriber has not relied
on any information in the Memorandum or otherwise provided to Subscriber by AEA
or its affiliates, regarding Xxxxxxx-Xxxxxx, or its business and prospects, or
the industries described therein, or on any financial projections or forecasts.
The Subscriber acknowledges that the Corporation has offered to provide the
Subscriber with such additional information about the business and financial
condition of the Corporation, Xxxxxxx-Xxxxxx, the transaction described in the
Preliminary Prospectus and the Purchase Agreement, as the Subscriber may deem
advisable or appropriate and that the Subscriber has either not requested any
such additional information or has received such additional information as the
Subscriber has requested.
(f) Subscriber acknowledges that he may have access to certain
confidential, non-public and proprietary information (the "Confidential
Information") concerning the Corporation and its subsidiaries and affiliates
(the "Affiliates") and its officers, directors, shareholders, employees, agents
and representatives and agrees that: (i) unless pursuant to prior written
consent by the Corporation, the Subscriber shall not disclose any Confidential
Information or the provisions of this Agreement or knowledge of this Agreement's
existence to any person for any purpose whatsoever; (ii) the Subscriber shall
treat as confidential all Confidential Information and shall take reasonable
precautions to prevent unauthorized access to the Confidential Information;
(iii) the Subscriber shall not use the Confidential Information in any way
detrimental to the Corporation or the Affiliates and shall use the Confidential
Information for the exclusive purpose of effecting his duties of employment with
the Corporation; and (iv) the Subscriber agrees that the Confidential
Information obtained during his employment with the Corporation shall remain the
exclusive property of the Corporation, and the Subscriber shall promptly return
to the Corporation all material which incorporates, or is derived from, all such
Confidential Information upon termination of his employment with the
Corporation. Subscriber shall be responsible for any breach of the terms of this
Section 4(f) by any Permissible Transferee (as defined herein) of the Shares.
Section 5. Books, Records and Reports.
(a) The Corporation shall cause to be kept on an appropriate
basis, and each stockholder of the Corporation shall have access to, appropriate
books, records and accounts. The books and records of the Corporation shall each
be audited as of the end of each calendar year by a firm of independent public
accountants of national standing selected by the Corporation.
(b) Within 90 days of the end of each fiscal year, the
Corporation shall mail to each of its stockholders a report setting forth an
audited balance sheet as at the
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end of such fiscal year and audited statements of income and source and
use of funds for such fiscal year of the Corporation, and any other
information the Corporation deems necessary or desirable. The
Corporation will furnish quarterly financial statements to its
stockholders as requested.
(c) The Corporation also will furnish to each of its
stockholders such other information as such stockholder may from time to time
reasonably request.
Section 6. Restrictions on Transfers.
6.01 Legend on Securities. Each stock certificate evidencing
Shares issued pursuant to this Agreement, including any such stock certificates
representing shares issued to subsequent transferees, shall (unless otherwise
permitted by this Agreement) be stamped or otherwise imprinted with a legend or
legends in substantially the following form:
"The securities represented hereby have not been registered
under the Securities Act of 1933 and may not be sold, assigned,
transferred, pledged or otherwise disposed of except in compliance
with the requirements of such Act and until the Corporation shall
have received the written opinion of counsel to the Corporation to
that effect."
"The securities represented hereby are subject to restrictions
on transfer contained in a Subscription Agreement, a copy of which
is on file at the office of AEA Investors Inc."
Each stock certificate evidencing any of the shares described
above in this Section 6.01 which bears the legend set forth above is hereinafter
in this Section 6 referred to as a "Restricted Certificate."
6.02 Transfers. Each holder of a Restricted Certificate, by
acceptance thereof, agrees, prior to any offer to sell, sale or other
disposition of part or all of the securities evidenced by such Restricted
Certificate, to give written notice to the Corporation of such holder's
intention to effect such sale or other disposition. Each such notice shall
describe the manner and circumstances of the proposed sale or other disposition
in sufficient detail and may be accompanied by an opinion of counsel to such
holder. Promptly upon receipt of such notice, the Corporation shall present a
copy thereof (together with any accompanying opinion of counsel to such holder)
to its counsel, and the following provisions shall apply:
(a) If, in the opinion of counsel to such holder, satisfactory
in form and substance to the Corporation and its counsel, or if such notice was
not accompanied by an opinion of counsel to such holder, then, if, in the
opinion of counsel to the Corporation, the proposed sale or other disposition
may be effected without registering the securities involved under the Securities
Act, such holder shall, subject to Section 6.02 (c) below, be entitled to
transfer such securities in accordance with the terms of the notice delivered to
the Corporation. The Corporation will advise such holder, within 10 business
days after submission of such notice, whether such holder is entitled to so
transfer the securities. If such holder is entitled to so transfer, he shall
submit the Restricted Certificate to the Corporation in proper form for transfer
and accompanied by appropriate instruments of transfer. Such Restricted
Certificate shall also be accompanied by an undertaking in writing by the
transferee to be bound by all the terms of this Agreement. Each Restricted
Certificate thus transferred (and each of the stock certificates evidencing any
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untransferred balance of the securities evidenced by such Restricted
Certificate) shall bear the restrictive legend set forth in Section 6.01 above,
unless, in the opinion of both such counsel (or counsel to the Corporation if
such holder did not present an opinion of his counsel), such legend is not
required by the applicable provisions of the Securities Act.
(b) If in the opinion of either of such counsel (or counsel to
the Corporation if such holder did not present an opinion of his counsel), the
proposed sale or other disposition cannot be effected without registering the
securities involved under the Securities Act, such holder shall not offer to
sell, sell or otherwise dispose of such securities unless and until such
securities have been registered under the Securities Act for such purpose or an
exemption becomes available.
(c) Except as permitted by Sections 6.02(d) or pursuant to the
"tag-along" rights provided to the Subscriber pursuant to Section 18, the
Subscriber shall not, at any time from the date hereof until the fifth
anniversary thereof (the "Restricted Period"), without the consent of the
Corporation, transfer, sell, exchange, assign, pledge, or otherwise dispose of,
by testamentary bequest, inter vivos transfer or otherwise (hereinafter referred
to as a "transfer"), any Shares owned by him ("Restricted Shares").
(d) Notwithstanding any provision to the contrary contained in
this Agreement and upon compliance with Section 6.02(a):
(i) The Subscriber may transfer Restricted Shares to:
(1) a spouse or any lineal ancestor or descendant; (2) the trustee
or trustees of a trust or trusts at any time established for the
primary benefit of the Subscriber or the spouse or any lineal
ancestor or descendant of the Subscriber, provided that each and
every trustee who may vote any Restricted Shares shall be the
Subscriber or a person referred to in this Section 6.02(d)(i) or a
bank or trust company; (3) a partnership or partnerships, all of
the general and limited partners of which are Subscribers and/or
one or more of the persons referred to in this Section 6.02(d)
(other than a bank or trust company); provided that, (x) any such
trust or partnership shall have no terms inconsistent with the
obligations of a Subscriber under this Agreement, and (y) as a
condition of transfer, any Permissible Transferee shall execute
and deliver to the Corporation an agreement in form and substance
reasonably satisfactory to the Corporation pursuant to which the
Permissible Transferee agrees to be bound by all of the provisions
of this Agreement. Any person receiving any Restricted Shares in a
transaction pursuant to this Section 6.02(d) is herein referred to
as a "Permissible Transferee" with respect to such transaction. If
any Restricted Shares are transferred to a Permissible Transferee,
such Permissible Transferee shall take and hold such Restricted
Shares, and such Restricted Shares shall be, subject to this
Agreement and to the rights, obligations and restrictions provided
herein with respect to the original Subscriber of such Restricted
Shares as of the date of this Agreement, as if such Permissible
Transferee were such original Subscriber.
(ii) Any transfer of Restricted Shares otherwise
permitted by this Section 6.02 shall not be made unless in
compliance with all applicable laws, including, without
limitation, the securities laws of the United States and the
states thereof.
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(e) No purported transfer of any Restricted Shares or the
shares represented by Restricted Certificates in violation of this Agreement
shall be of any force or effect, and no such transfer shall be made or recorded
on the books of the Corporation.
Section 7. Certain Consequences of Termination of
Subscriber's Employment.
7.01 Termination Other than Death or Disability. In the event
of the Subscriber's termination of employment at Xxxxxxx-Xxxxxx or any of its
affiliates for any reason other than for death or permanent disability, the
Corporation shall have an option (a "Call Option") to purchase from the
Subscriber and the Permissible Transferees of such Subscriber all (but not less
than all) of the Subscriber's Shares which are evidenced by Restricted
Certificates that are owned by the Subscriber and the Permissible Transferees of
such Subscriber at a price per share equal to the fair market value of the
Shares determined as of the date of repurchase by the Board of Directors of the
Corporation in its sole discretion provided that if such termination is for
cause, as determined under applicable law, the repurchase price shall be the
lesser of said fair market value or the price paid by the Subscriber pursuant to
Section 1. If the Corporation desires to exercise the Call Option, it shall give
written notice thereof to the Subscriber and the Permissible Transferees of such
Subscriber within 60 days of the occurrence of the event giving rise to such
Call Option; such Call Option shall expire if such notice is not given within
such 60-day period. The Subscriber and the Permissible Transferees of such
Subscriber shall deliver to the Corporation certificates representing the
Shares, free and clear of all claims, liens, or encumbrances, together with
blank stock powers, duly executed with all signature guarantees at a closing at
the principal office of the Corporation on the third business day after notice
has been given to the Subscriber, or at such other place and time and in such
manner as may be mutually agreed to by the Subscriber and the Corporation. The
proceeds from the purchase of the Shares pursuant to the Call Option (the "Call
Option Proceeds") shall be paid by a check, which shall be delivered to the
Subscriber at the closing of such purchase.
7.02 Termination of Call Option. All rights and obligations
created pursuant to Section 7.01 shall be extinguished upon the earlier of (i)
the fifth anniversary of this Agreement or (ii) an underwritten public offering
by the Corporation of the outstanding capital stock of the Corporation.
7.03 Rights in the Event of Permanent Disability or Death. In
the event of (i) the permanent disability of the Subscriber so that he is unable
substantially to perform his services as an employee of Xxxxxxx-Xxxxxx or any of
its affiliates for an aggregate of 180 days during any twelve-month period or
(ii) the death of the Subscriber, the Subscriber or, in the event of death, the
deceased Subscriber's administrator or executor, shall have the option (the
"Subscriber Option"), exercisable by the giving of notice thereof to the
Corporation within 120 days of the occurrence of the event giving rise to such
Subscriber Option, which, in the case of permanent disability, shall mean the
180th day of inability to perform services as an employee of Xxxxxxx-Xxxxxx or
any of its affiliates, to sell to the Corporation, and the Corporation upon
exercise of such Subscriber Option shall buy from the Subscriber or the deceased
Subscriber's administrator or executor, as the case may be, all (but not less
than all) of the Subscriber's Shares, at a price per share equal to the fair
market value of the Shares determined as of the date of repurchase by the Board
of Directors of the Corporation in its sole discretion. Such Subscriber Option
shall expire if such notice is not given within such 120-day period. The
Subscriber, or the deceased Subscriber's administrator or executor, shall
deliver to the Corporation certificates representing the Shares, free and clear
of all claims, liens, or
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encumbrances, together with blank stock powers, duly executed with all
signature guarantees at a closing at the principal office of the
Corporation on the third business day after notice has been given to the
Corporation or at such other place and time and in such manner as may be
mutually agreed to by the Subscriber, or the deceased Subscriber's
administrator or executor, and the Corporation. The proceeds from the
purchase of the Shares pursuant to the Subscriber Option (the
"Subscriber Option Proceeds") shall be paid by a check, which shall be
delivered to the Subscriber at the closing of such purchase. The
obligations of the Corporation to purchase the Subscriber's Shares
pursuant to this Section 7.03 shall be deferred during any period in
which such purchase would not be permitted by applicable law or could
cause the Corporation to be in default under any agreement to which it
or its affiliates are a party.
7.04 Termination of Subscriber Option. All rights and
obligations created pursuant to Section 7.03 shall be extinguished upon the
earlier of (i) the fifth anniversary of this Agreement or (ii) an underwritten
public offering by the Corporation of the outstanding capital stock of the
Corporation.
Section 8. Conditions of Closing.
8.01 The Corporation's Conditions. The obligation of the
Corporation to issue the Shares to the Subscriber pursuant to this Agreement is
subject to the fulfillment as of the Closing of the following conditions
precedent:
(a) At the Closing, the representations and warranties of the
Subscriber contained in Section 4 shall be true and correct with the same effect
as if such representations and warranties had been made at and as of that time,
and the Corporation shall have received a certificate to that effect, dated the
Closing Date, and signed by the Subscriber.
(b) Simultaneously with the Closing, the Corporation or its
assignee shall have acquired all of the issued and outstanding capital stock or
other equity interests of, and certain indebtedness of, Xxxxxxx-Xxxxxx, pursuant
to the Purchase Agreement.
(c) Simultaneously with the Closing, various investors shall
have purchased 1,200,000 shares of Class A Stock pursuant to the Participants'
Subscription Agreements and up to 700,000 shares of Class A Stock, 500 shares of
Class B Stock and up to 199,501 shares of Class C Stock pursuant to this
Agreement and the Other Subscription Agreements, excluding the Participants'
Subscription Agreements.
8.02 Subscriber's Conditions. The obligation of the Subscriber
to purchase the Shares from the Corporation pursuant to this Agreement is
subject to the fulfillment as of the Closing of the following conditions
precedent:
(a) At the Closing, the representations and warranties of the
Corporation contained in Section 3 shall be true and correct with the same
effect as though such representations and warranties had been made at and as of
that time, and the Subscriber shall have received a certificate to that effect,
dated the Closing Date, and signed by an officer of the Corporation.
(b) Simultaneously with the Closing, the Corporation or its
assignee shall have acquired all of the issued and outstanding capital stock or
other equity interests of, and certain indebtedness of, Xxxxxxx-Xxxxxx, pursuant
to the Purchase Agreement.
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(c) Simultaneously with the Closing, various investors shall
have purchased 1,200,000 shares of Class A Stock pursuant to the Participants'
Subscription Agreements and up to 700,000 shares of Class A Stock, 500 shares of
Class B Stock and up to 199,501 shares of Class C Stock pursuant to this
Agreement and the Other Subscription Agreements, excluding the Participants'
Subscription Agreements.
(d) At the Closing, the Subscriber shall have received from
Xxxxxxxxx X. Xxxxx, Esq., General Counsel of AEA, an opinion, dated the Closing
Date, to the effect that:
(i) The Corporation is duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has all
requisite corporate power and authority for the transactions
contemplated by this Agreement;
(ii) The Shares to be issued hereunder, when they shall have
been issued and sold pursuant to this Agreement, will have been
validly issued and will be outstanding, fully paid and
nonassessable;
(iii) The Corporation has the full power and authority to
enter into this Agreement, to issue and deliver the Shares and to
incur and perform the obligations to be incurred and performed by
it, all as provided for herein;
(iv) This Agreement has been duly authorized by the
Corporation and has been duly executed and delivered by it and,
assuming due authorization, execution and delivery of this
Agreement by the Subscriber, is a legal, valid and binding
obligation of it, enforceable in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement
of creditors' rights generally or by general equitable principles
and except that no opinion is expressed with respect to
indemnification for securities law liabilities;
(v) Based upon the representations contained herein and
information furnished by the Corporation and by subscribers to the
Corporation's stock, it is not necessary, in connection with the
offer, sale and delivery of the Shares pursuant to this Agreement,
to register the Shares under the Securities Act as then in effect;
(vi) The execution and performance of the Agreement does not,
and the issuance by the Corporation of the Shares will not, either
with the giving of notice or lapse of time or both, violate the
Restated Certificate of Incorporation or the By-Laws of the
Corporation or any agreement or instrument, known to such counsel,
by which it is bound and will not result in the creation of any
encumbrance or charge upon any of its assets; and
(vii) To the knowledge of such counsel, there is no action,
proceeding or investigation pending or threatened against the
Corporation or any of its properties or assets.
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Section 9. AEA Management Agreement. The Subscriber hereby
acknowledges and agrees that, pursuant to a Management Agreement between AEA and
Xxxxxxx-Xxxxxx, AEA will receive management and other fees from Xxxxxxx-Xxxxxx.
Section 10. Fees. The Corporation will pay, and save the
Subscriber (other than solely in its capacity as a stockholder of this
Corporation) harmless against all liability for the payment of, (i) all costs
and expenses incurred by the Corporation in connection with the preparation of
this Agreement and the Memorandum, the issue and sale of the Shares pursuant to
this Agreement and the Corporation's performance of and compliance with all
other agreements and conditions contained herein on its part to be performed or
complied with; and (ii) the Corporation's delivering to the Subscriber by mail,
insured as to the value thereof, the Shares purchased by the Subscriber. The
Corporation further agrees that it will pay, and will save the Subscriber
harmless from, any and all liability with respect to any stamp or similar taxes
(other than transfer taxes) which may be determined to be payable in connection
with the execution and delivery of this Agreement or any modification, amendment
or alteration of the terms and provisions of this Agreement, and that it will
similarly pay and hold the Subscriber harmless from all issue taxes in respect
of the issuance of the Shares.
Section 11. Survival of Representations, Warranties and
Agreements. All representations, warranties and agreements contained in this
Agreement shall survive the execution hereof and the delivery of the Shares.
Section 12. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be signed by the Corporation and
the Subscriber and all of which shall be deemed to be one and the same agreement
binding upon the Corporation and the Subscriber.
Section 13. Notices. All notices hereunder shall be in writing
and shall be deemed to have been duly given if delivered in person or by
registered or certified mail, return receipt requested, to the Corporation at
its principal place of business, or to the Subscriber at the addresses set forth
opposite his name below or such other address as the Subscriber shall have given
to the Corporation for such purpose. Notice shall be deemed to have been
effectively given when mailed by certified mail, return receipt requested, to
the proper address or delivered in person.
Section 14. Changes. The terms and provisions of this
Agreement may not be modified or amended, or any of the terms or
provisions hereof waived, except pursuant to the written consent of the
Corporation and the Subscriber.
Section 15. Headings. The headings of the various sections
of this Agreement have been inserted for convenience of reference only
and shall not be deemed to be a part of this Agreement.
Section 16. Governing Law. This Agreement shall be governed by
and construed in accordance with the law of the State of New York applicable to
agreements made and to be performed entirely within such State.
Section 17. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the legal representatives, successors
and assigns of the parties hereto, whether so expressed or not. In addition,
whether or not any express assignment shall have been made, the provisions of
this Agreement shall also be binding upon, for the benefit of, and enforceable
by any subsequent holder of any of the Shares other than a holder who acquired
his shares in a transaction for which a Registration
-10-
Statement under the Securities Act was effective at the time or in a sale
complying with Regulation A or Rule 144 of the Securities and Exchange
Commission.
Section 18. Tag-Along. In the event that, before securities of
the Corporation first have been sold pursuant to a Registration Statement under
the Securities Act, the holders of the Class A Stock subscribed for under the
Participants' Subscription Agreements (the "Participants' Shares") sell all or
substantially all of the outstanding Participants' Shares in a single private
transaction or series of related private transactions, the Subscriber under this
Agreement shall be afforded the opportunity to sell, in the same transaction or
transactions, at the same price and on the same terms, the same proportion of
the total number of shares of the Class A Stock owned by such Subscriber as the
number of shares of Class A Stock of the Participants' Shares being sold bears
to the total number of then outstanding shares of Class A Stock of the
Participants' Shares.
IN WITNESS WHEREOF, this Agreement has been duly executed as
of the date first above written.
MT INVESTORS INC.
c/o AEA Investors Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By:_________________________________
Vice President
SUBSCRIBER
____________________________________
[Name]
Address:
____________________________________
____________________________________
____________________________________
