EXHIBIT 4.13
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
among
MTL INC.,
APOLLO INVESTMENT FUND III, L.P.,
APOLLO OVERSEAS PARTNERS III, L.P.,
APOLLO U.K. FUND III, L.P.,
and
Certain Shareholders
of MTL Inc.
Dated as of February 10,1998
TABLE OF CONTENTS
Paragraph Page No.
1. Restrictions on Transfer: Permitted Transferees: Pledges ...................................... 1
2. Notice by ▇▇▇▇▇▇▇ of Proposed Transfers ....................................................... 2
3. Offer to Sell Shares .......................................................................... 3
4. Elections to Purchase Shares .................................................................. 3
5. Procedures Upon Elections for Less than All of Shares Offered ................................. 3
6. Closing of Purchase of Shares ................................................................. 4
7. Disposition by ▇▇▇▇▇▇▇ of Shares not Purchased by the Apollo Entities ......................... 4
8. O'Brien Sale Right ............................................................................ 4
9. Participation Rights: Bring-Along Rights ...................................................... 6
10. Representations and Warranties ................................................................ 8
11. Incidental Registration ....................................................................... 8
12. Expenses ...................................................................................... 10
13. Holdback Agreements ........................................................................... 10
14. Indemnification and Contribution .............................................................. 10
15. Rule 144 Reporting ............................................................................ 13
16. Preemptive Rights ............................................................................. 13
17. Certain Agreements ............................................................................ 15
18. Confidentiality................................................................................ 15
19. Financial Statements........................................................................... 15
20. General Restrictions........................................................................... 16
21. Legends........................................................................................ 16
22. Further Assurances............................................................................. 16
23 Notices........................................................................................ 16
24 Amendment; Termination......................................................................... 17
25 General........................................................................................ 17
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THIS AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT, dated as of February
10,1998, is among APOLLO INVESTMENT FUND III, L.P. (the "Apollo
Representative"), APOLLO OVERSEAS PARTNERS III, L.P. and APOLLO (U.K.) PARTNERS
III, L.P., (the foregoing and their transferees and assignees, each, an "Apollo
Entity," and, collectively, the "Apollo Entities"), ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇., an
individual ("O'Brien'% ▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, an
individual (the foregoing individuals, herein sometimes individually referred to
as a "Management Shareholder" and collectively as the "Management Shareholders")
and ▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual ("▇▇▇▇▇▇▇") (the Management Shareholders and
▇▇▇▇▇▇▇, herein sometimes individually referred to as a "Shareholder" and
collectively as the "Shareholders") all of the foregoing, shareholders of MTL
Inc., a Florida corporation (the "Corporation"), and the Corporation.
WHEREAS, Sombrero Acquisition Corp., a Florida corporation
("Sombrero"), and the Corporation have entered into an Agreement and Plan of
Merger of even date herewith (as the same may be amended or supplemented, the
"Merger Agreement") providing for the merger of Sombrero with and into the
Corporation (the "Merger");
WHEREAS, the transactions contemplated by the Merger Agreement
were consummated on lone 9,1998 (the "Merger Date"), and the Apollo Entities are
the record and beneficial owners of the number of shares of Common Shares, par
value $.41 per share, of the Corporation (the "Common Shares") as provided in
the Merger Agreement and the Management Shareholders arc the record and
beneficial owner of the Common Shares and Options (as defined in the Merger
Agreement) (the Common Shares and Options, collectively, the "MTL Securities")
as set forth on Exhibit A hereto (the "Shares"). The term "Shares" shall include
any MTL Securities now owned or hereinafter acquired by any Shareholder, any
securities that may be issued by the Corporation as a result of any Shares
dividend, Shares split or other distribution, reconstruction, reclassification,
reorganization or the like and any warrants or options to acquire MTL Securities
or securities convertible into shares of MTL Securities now owned or hereafter
acquired by any Shareholder,
WHEREAS, the Shareholders, the Apollo Entities and the Company
wish to amend and restate the original shareholders agreement, also dated as of
February 10,1998, among such parties (the "Original Agreement") in its entirety;
WHEREAS, the Shareholders and the Apollo Entities desire to
impose certain limited restrictions on the disposition and transfer of the
Shares, to create certain limited sale participation and bring-along rights, to
create certain registration rights and to agree with respect to certain matters
relating to the voting of the Stock;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties agree as follows:
1. Restrictions on Transfer, Permitted Transferees; Pledges (a) No Shareholder
shall make or suffer to be made, any transfer, sale, assignment, gift, pledge,
mortgage, or other disposition or encumbrance (all of which are comprised within
the work "transfer" as used hereinafter) of all or any portion of the Shares now
owned or hereafter acquired by such Shareholder, unless (i) the transferee of
such Shares shall be bound by and benefit from (except
as otherwise provided herein) the terms and provisions of this Agreement as if
he were a Shareholder hereunder and shall enter into a joinder to this Agreement
(in the form attached hereto as Exhibit B) to such extent and (ii) the
Corporation and the Apollo Entities shall receive such assurances as they may
reasonably require to the effect that such transfer does not violate the
Securities Act of 1933, as amended (the "Act"), or applicable state securities
laws (including, without limitation, representations and warranties as to
investment intention and an opinion of counsel).
(b) In addition to the provisions of Paragraph 1(a) above,
▇▇▇▇▇▇▇ shall not make, or suffer to be made any transfer of all or any portion
of the Shares now owned or hereafter acquired by ▇▇▇▇▇▇▇, except that each of
the following transfers by ▇▇▇▇▇▇▇ are expressly permitted:
(i) after thirty months from the Merger Date, by ▇▇▇▇▇▇▇ to a bona
fide purchaser, after ▇▇▇▇▇▇▇ shall have first offered the Shares to the
Apollo Entities in accordance with the procedures hereinafter set forth
in Paragraphs 2 through 7 below; provided that in no event may such
purchaser be a person or entity which, directly or indirectly, engages
in the bulk transportation services business, in any related business or
in any other business competitive with the Corporation at the time of
sale;
(ii) to a Permitted Transferee (as hereinafter defined);
(iii) as expressly approved by the Apollo Entities (but subject to any
terms or conditions provided by the Apollo Entities in granting any such
approval); or
(iv) as otherwise expressly provided herein, including pursuant to the
rights specified in Section 9 or the incidental registration rights specified in
Section 11.
(c) For the purposes of the foregoing, a "Permitted Transferee" shall
mean:
(i) the heirs, executor, administrator or personal representative of
▇▇▇▇▇▇▇, upon the death of ▇▇▇▇▇▇▇;
(ii) the spouse, sibling, parent, child or grandchild of ▇▇▇▇▇▇▇ who is
a natural
(iii) a trust for the exclusive benefit of ▇▇▇▇▇▇▇ and any of the
family members listed in clause (ii) above;
(iv) any entity in which ▇▇▇▇▇▇▇ holds a controlling equity interest;
and
(v) an Apollo Entity or the Corporation
2. Notice by ▇▇▇▇▇▇▇ of Proposed Transfers Subject to Paragraph 1(b)
above, if at any time ▇▇▇▇▇▇▇ proposes to transfer any Shares, he shall, prior
to making any transfer of Shares, give written notice (the "Notice") to the
Apollo Representative, specifying (i) the Shares to be so transferred, (ii) the
method of transfer, (iii) the identify of the prospective transferee and
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(iv) in the case of a proposed bona fide sale, the terms of the offer
made by the prospective purchaser or to the prospective purchaser and accepted
by such prospective purchaser.
3. Offer to Sell Shares In the case of a proposed bona fide sale, the
Notice provided in Paragraph 2 shall, except as provided in Paragraph 7 or in
the case of a proposed transfer permitted by clauses (ii) through (iv) of the
first sentence of Paragraph 1(b), constitute an irrevocable offer to sell such
Shares to the Apollo Entities on the terms and at the price specified in this
Paragraph 3 (such offer is hereinafter referred to as the "Offer to Sell"). The
Offer to Sell shall be at the price and on the other terms (including any
deferral of payment in whole or in part) offered by the prospective purchaser
specified in the Notice, except that if the proposed sale is to be wholly or
partly for consideration other than money (the term "money" being used in this
Paragraph 3 to include deferred obligations to pay money), the Offer to Sell
shall be at a price equal to the amount of the monetary consideration plus the
fair market value (as determined in good faith by the Apollo Entities within 10
days after receipt of the Notice by the Apollo Representative), at the date of
the Notice to the Corporation of the consideration other than money offered by
the prospective purchaser.
4. Elections to Purchase Shares (a) The Apollo Representative will
promptly, and in any event within 5 days, notify the Apollo Entities of its
receipt of an Offer to Sell and the terms thereof upon receipt of such Offer to
Sell (or, if later, as soon as the determination of the fair market value of
non-monetary consideration is made pursuant to Paragraph 3). The Apollo Entities
will then have 30 days after the giving of such notice by the Apollo
Representative of the Offer to Sell (the "Exercise Period"), within which to
notify ▇▇▇▇▇▇▇ in writing of their election to purchase all, but not less than
a11, of the Shares offered.
(b) Within the Exercise Period, the Apollo Entities may elect to accept
the Offer to Sell as to all of the Shares offered by providing ▇▇▇▇▇▇▇ with
written notice specifying the number of Shares of offered Shares each of the
Apollo Entities elects to purchase. Each election to purchase Shares shall be
irrevocable, regardless of whether the number of shares deliverable upon the
exercise of such election shall be reduced in accordance with the provisions of
Paragraph 4(c) below, and shall be deemed to constitute an election to purchase
such lesser number of shares as shall be determined in accordance with such
Paragraph 4(c). Except as provided in Paragraph 5 below, all elections shall be
binding on ▇▇▇▇▇▇▇.
(c) If the aggregate number of Shares accepted by the Apollo Entities
exceeds the number of offered Shares, then the right to purchase the offered
Shares shall be allocated to the electing Apollo Entities pro rata (to the
extent of the Shares elected to be purchased) on the basis of their respective
Common Shares ownership on the date of the initial Offer to Sell.
5. Procedures Upon Elections for Less than All of Shares Offered If
elections have been made by the Apollo Entities in the aggregate for all of the
Shares offered, the Apollo Entities in the aggregate for all of the Shares
offered, the Apollo Representative shall in such notice designate a place, time
and date (not more than 20 days nor less than 10 days after the expiration of
the Exercise Period) for a closing of such purchase and sale.
Notwithstanding the provisions of Paragraph 4, in the case of a
proposed bona fide sale by ▇▇▇▇▇▇▇, elections to purchase made by the Apollo
Entities shall not be binding on
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▇▇▇▇▇▇▇ if the Apollo Entities do not in the aggregate elect to purchase all of
the Shares offered. In such event, no sales pursuant to such elections need be
made by ▇▇▇▇▇▇▇ and he may then sell the Shams to the proposed bona fide
purchaser, subject to the provisions of Paragraph 7. Notwithstanding the
foregoing, ▇▇▇▇▇▇▇ may, by written notice to the Apollo Representative within 10
days after the Apollo Entities give notice under this Paragraph 5, waive his
right not to sell that part of the Shares for which elections have been made,
and accept and confirm all such elections so made. Upon receipt by the Apollo
Representative from ▇▇▇▇▇▇▇ of such notice of waiver and acceptance, the Apollo
Representative shall promptly by separate notice designate a place, time and
date (not more than 20 days nor less than 10 days after receipt by the Apollo
Representative of such notice) for a closing of the purchase and sale.
6. Closing of Purchase of Shares At the closing designated
pursuant to ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ shall (i) deliver against receipt of the
purchase price therefor by cash or certified or bank cashier's check, the
certificate or certificates representing the Shares that each Apollo Entity has
elected to purchase, properly endorsed for transfer, with all necessary transfer
and documentary stamps affixed, and in a form such that upon presentation to the
Corporation the Shares represented thereby may be registered in the names of the
respective purchasers and (ii) be deemed to have represented and warranted to
such purchaser that (a) the Shares to be sold are beneficially and of record
owned by ▇▇▇▇▇▇▇ free and clear of all liens, claims, privileges, options,
security interests, rights of first refusal, agreements, limitations or voting
rights, preemptive rights, charges or other encumbrances of any nature (except
as expressly provided by this Agreement) (an "Encumbrance") and (b) the sale and
delivery of the Shares by ▇▇▇▇▇▇▇ as contemplated hereby shall vest in the
purchaser on such date good and marketable title to such Shares free and clear
of all Encumbrances (clauses (a) and (b), the "Sale Representations").
7. Disposition by ▇▇▇▇▇▇▇ of Shares not Purchased by the Apollo
Entities Any Shares not purchased by the Apollo Entities pursuant to Paragraphs
4 through 6 may be disposed of by ▇▇▇▇▇▇▇ to the prospective transferee named in
his notice under Paragraph 2, at a price and on terms not more favorable to the
transferee than those specified in such notice, but only within 90 days after
the expiration of the Exercise Period; provided, that a transferee shall, prior
to the transfer, execute and deliver to the Apollo Representative a written
agreement that (i) the Shares so transferred shall continue to be subject to all
the restrictions and other provisions of this Agreement, and (ii) the transferee
shall be bound by such restrictions and other provisions as if he were an
original party to this Agreement. Notwithstanding the foregoing, no such
transferee shall be entitled to the rights of ▇▇▇▇▇▇▇ under this Agreement,
unless such transferee was a Shareholder prior to such transfer.
8. O'Brien Sale Right a) In the event (i) O'Brien remains
employed by the Corporation for a period of four years from the Merger Date or
(ii) O'Brien's Employment Agreement is not renewed by the Corporation in
accordance with such agreement's terms and he does not remain employed by the
Corporation for a period of four years from the Merger Date, O'Brien may within
180 days after the determination of Fair Market Value as contemplated hereby,
following such fourth anniversary, elect to cause the Corporation to purchase
such number of Common Shares (but not Options or Shares acquired after the
Merger Date or upon the exercise of any Option) owned by O'Brien on the date of
such election that will allow him to recoup his original investment in the
Common Shares in accordance with the following formula (such number of Common
Shares is herein referred to as the "Recoupment Number"):
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Number of
Common Proceeds (expressed
Shares to be in dollars) of all
sold (the = $1,209,560 - sales of Shares or
"Recoupment Options prior to the
Number") date of exercise
-------------------------------------------------------------------------------------------------------
Fair Market Value of a Common Share
Upon exercise of such election, the Corporation shall be required to purchase
from O'Brien a number of Common Shares equal to the Recoupment Number for a
purchase price equal to Fair Market Value within 60 days thereafter, unless
suspended on account of Legal Impediment, against receipt of the certificate of
certificates representing such Shares, properly endorsed for transfer, with all
necessary transfer and documentary stamps affixed, which shall be free and clear
of all liens, encumbrances and rights of third parties. In addition, O'Brien
shall be deemed to have made the Sale Representations with respect to the Common
Shares being sold by him to the purchaser of the Common Shares upon the closing
of such purchase and sale.
(b) Notwithstanding the foregoing, Apollo may, in its sole
discretion fulfill the Corporation's obligation under this Paragraph 8 and shall
be entitled to arrange for all or a part of such Common Shares to be purchased
by a third party for cash; provided, that such transferee shall be bound by the
terms and provisions of this Agreement as if such transferee were an Apollo
Entity hereunder and shall be entitled to the rights of an Apollo Entity under
this Agreement. If such third party does not purchase all of such Common Shares,
the remainder of the purchase price shall be paid by the Corporation or the
Apollo Entities in cash at closing to the extent the cash payment by the third
party purchaser is less than the cash amount the Corporation or the Apollo
Entities would have been required to pay at closing as contemplated above.
(c) For the purposes of the foregoing provisions:
(i) "Fair Market Value" shall be calculated on the same basis as "Per
Share Equity" as set forth in the Option Plan.
(ii) The term "Legal Impediment" shall include, without limiting the
generality of the following, (A) restrictions on account of applicable corporate
or creditors' rights laws or contractual commitments and covenant obligations to
lending institutions or other third parties and (B) a good faith determination
by the Board of Directors of the Corporation that sufficient funds are not
available to the Corporation to purchase the Shares. The Corporation covenants
and agree to use commercially reasonable efforts to obtain any consents or
waivers from third parties that may be necessary in order to eliminate or waive
any Legal Impediment which could otherwise prevent the Corporation from
purchasing the Shares; provided, that the Corporation shall not be required in
order to obtain any such consent or waiver to incur any third party expense or
enter into any unfavorable modification of any existing agreement. The
Corporation's obligation to acquire the Shares (if not already purchased
pursuant to the provisions of this Paragraph 8) shall resume upon the cessation
of a Legal Impediment.
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(iii) "Option Plan" means the Corporation's 1998 Stock Option Plan.
9. Participation Rights: Bring-Along Rights (a) Subject to the
further provisions of Paragraph 9(h) and Paragraph 11 below, no Apollo Entity or
group of Apollo Entities (the "Transferring Holders") shall transfer, directly
or indirectly, in a single public offering (as provided in Paragraph 11 below)
or in a transaction or series of related transactions, Shares which result in a
transfer to an unrelated party of greater than ten percent (10%) of the
aggregate value of the MTL Securities outstanding on the date of transfer (a
"10% Transfer") unless the terms and conditions of such sale shall include an
offer to the Management Shareholders to include in the transfer, at the option
of each Management Shareholder, a pro rata portion (on the basis of such
Management Shareholder's ownership on the date of the Participation Notice (as
defined below) and the total number of Shares to be transferred pursuant to the
10% Transfer) of Shares of each Management Shareholder at the same price and on
the same terms and conditions applicable to the Shares being transferred by the
Transferring Holders.
(b) In the event that the Transferring Holders receive a bona
fide offer or offers from a third party to purchase or otherwise determines to
transfer Shares which purchase or transfer would trigger a 10% Transfer (the
"Participation Offer"), the Transferring Holders shall then cause the
Participation Offer to be reduced to writing and shall give each Management
Shareholder written notice thereof (a "Participation Notice"). Each
Participation Notice shall contain a true and correct copy of the Participation
Offer and shall identify the number of Shares with RESPECT TO which the
Transferring Holders have a bona fide offer or other agreement to sell (the
"Designated Shares"), the total number of Shares which the Transferring Holders
own beneficially, the price per share of Shares at which the sale is proposed to
be made and any other material term or condition of the Participation Offer. The
Management Shareholders shall have the right and option, within 15 days after
the Participation Notice is given to the Shareholders (the "Participation
Period") to accept the Participation Offer for the number of Shares as
determined pursuant to Paragraph 9(c) below. Each Management Shareholder who
desires to exercise such option shall provide the Transferring Holders with
written notice which shall constitute an irrevocable acceptance of the
Participation Offer by such Management Shareholder (each such Shareholder a
"Participating Shareholder").
(c) Each Participating Shareholder shall have the right to sell
on the terms and conditions of the Participation Offer (and for like
consideration), a pro rata portion of the Shares then beneficially owned by such
other Shareholder. If the aggregate number of Shares to be offered by the
Participating Shareholder and the Transferring Holders (the "Offered Stock")
under the Participation Offer exceeds the number of Designated Shares, then the
right to SELL the Offered Stock shall be allocated among the Participating
Shareholders and the Transferring Holders pro rata, on the basis of their
respective Share ownership on the date of the Participation Notice.
(d) The Transferring Holders shall notify the Participating
Shareholders who have elected to sell their Shares 15 days prior to the date
upon which the transfer of Shares pursuant to this Paragraph 9 shall be
consummated, which notice shall contain the date, time and location of the
closing. The Participating Shareholders shall deliver at the closing to the
Transferring Holders the certificate or certificates representing the pro rata
of their Shares (the "Other Shares") together with a power-of-attorney
authorizing the Transferring Holders to sell such
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Shares pursuant to the terms of the Participation Offer. At the closing of the
transfer of the Designated Shares and the Other Shares to the third party
pursuant to the Participation Offer, the Transferring Holders shall remit to
each of the Participating Shareholders the total sales price of the Shares of
such Participating Shareholder sold or otherwise disposed of pursuant thereto.
(e) If at the termination of the Participation Period any
Participating Shareholder shall not have accepts the offer contained in the
Participation Notice, such Participating Shareholder will be deemed to have
waived any and all of his or her rights under this Paragraph 9 with respect to
the transfer of his or her Shares to such third party. The Transferring Holders
shall have 180 days in which to sell the Designated Shares and the Other Shares,
not otherwise excluded pursuant to the previous sentence, to the third party, at
a price equal to that contained in the Participation Notice and on the terms set
forth in the Participation Notice in the same manner as set forth in Paragraph
9(b) above.
(f) Notwithstanding any other provision contained in this
Paragraph 9, there shall not be any liability on the part of the Transferring
Holders in the event that the transfer of Shares pursuant to this Paragraph 9 is
not consummated for any reason whatsoever. The decision whether to effect a
transfer of Shares pursuant to this Paragraph 9 shall be in the sole and
absolute discretion of the Transferring Holders.
(g) In the event that Transferring Holders, shall transfer,
directly or indirectly, in a single transaction or series of related
transactions, Shares which result in a transfer to an unrelated party of
greater, than (i) fifty percent (50%) of the aggregate value of the MTL
Securities outstanding on the date of transfer or (ii) 50% or more of the MTL
Securities held by Transferring Holders immediately following the closing of
Merger (a "50% Transfer"), then the Transferring Holders may require, by written
notice to each Shareholder (the "Bring-Along Notice") that each Shareholder
transfer a pro rata portion (on the basis of such Shareholders' Share ownership
on the date of the Bring-Along Notice and the total number of Shares to be
transferred pursuant to the 50% Transfer) of his or her Shares in the 50%
Transfer on the same terms and conditions contained in the Bring-Along Notice.
The Bring-Along Notice shall contain a true and correct copy of the teens of the
50% Transfer and shall identify the third party, the number of Shares with
respect to which the Apollo Entities have a bona fide offer, the price per share
of Shares at which the sale is proposed to be made and all other material terms
and conditions of the 50% Transfer, including the date, time and location of the
closing. The Bring Along Notice shall be delivered not less than five business
days prior to the closing of the purchase and sale contemplated by this
Paragraph 9(g). In such event, each of the Shareholders shall deliver at the
closing to the Transferring Holders the certificate or certificates representing
his Shares together with a power-of-attorney authorizing the Transferring
Holders to sell such Shareholder's pro rata portion of the Shares pursuant to
the terms of the Bring-Along Notice. At the closing of the transfer of such
Shares, the Transferring Holders shall remit to each of the Shareholders the
total sales price (net of pro rata expenses) of the Shares of such Shareholder
sold or otherwise disposed of pursuant thereto.
(h) Notwithstanding any provision of this Agreement to the contrary,
in the event the terms on which a sale is proposed to be made under Paragraph
9(g) above (such sale, a "Bring-Along Sale") shall include a provision which
materially and adversely affects the ability of any Shareholder to compete in
any line of business or geographic area, such Shareholder shall
<
7
not be required to participate in the Bring-Along Sale on the terms and
conditions set forth in the Bring-Along Notice, as applicable. In the event any
Shareholder shall elect, pursuant to the preceding sentence, not to participate
in the Bring-Along Sale, the Transferring Holders shall have the right to
purchase, and such Shareholder shall be obligated to sell to the Transferring
Holders, such Shareholder's Shares which are subject to the Bring-Along Sale, at
the price (net of pro rata expenses) and on substantially the same terms (other
than any such non-compete provision), as those contained in the relevant
Bring-Along Notice, not later than two business days prior to the consummation
of the Bring-Along Sale.
10. Representations and Warranties (a) Each Shareholder hereby
represents and warrants to the Corporation and the Apollo Entities that (i) such
Shareholder is acquiring the Shares for investment purposes, without any present
intention of selling or distributing the Shares, (ii) such Shareholder is an
"accredited investor" (as such term is defined in Regulation D, promulgated
under the Act) and/or either atone or together with any persons the Shareholder
has retained to advise him with respect to the transactions contemplated hereby,
has knowledge and experience in financial and business matters in general, and
investments in particular, and the Shareholder is capable of evaluating the
merits and risks of acquiring the Shares, (iii) such Shareholder does not
anticipate any change in circumstances, financial or otherwise, which would
cause the sale or distribution of the Shares, (iv) such Shareholder acknowledges
that the Shares consists of "restricted securities" (as such term is defined in
Rule 144 of the Act) and that such Shareholder may not effect a distribution of
the Shares without registration under the Securities Act or pursuant to an
exemption thereunder and without compliance with any applicable state securities
laws and (v) this Agreement has been duly executed and delivered by such
Shareholder and constitutes the legal, valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance with its terms.
Each Shareholder acknowledges that he has received from the Corporation the
opportunity to ask such questions and receive such information concerning the
Corporation and the Shares as such Shareholder has deemed necessary or
desirable.
(b) The Corporation represents and warrants to each Shareholder
that (i) the Corporation is duly organized, validly existing and in good
standing under the laws of Florida, and has all requisite corporate power to
carry on its business as it is now being conducted, (ii) the execution, delivery
and performance of this Agreement by the Corporation have been duly authorized
by the Corporation's Board of Directors and (iii) this Agreement has been duly
executed and delivered by the Corporation and constitutes the legal, valid and
binding obligation of the Corporation, enforceable against the Corporation in
accordance with its terms.
(c) The Apollo Entities hereby severally, and not jointly,
represent and warrant to each Shareholder that (i) such Apollo Entity has the
power, capacity and authority to enter into this Agreement and to perform fully
such Apollo Entity's obligations hereunder and (ii) this Agreement has been duly
executed and delivered by such Apollo Entity and constitutes the legal,
11. Incidental Registration
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(a) If the Corporation at any time proposes to register any of
its Common Stock under the Act for sale to the public, (i) for its own account
(except with respect to a registration to be made on Forms ▇-▇, ▇-▇ or such
other form which is not available for registering Common Shares for sale to the
public) or (ii) for the account of the Apollo Entities, each such time it will
give at least 10 days prior written notice to all Shareholders of its intention
so to do. Upon the written request of any such Shareholder, received by the
Corporation within five days after the giving of any such notice by the
Corporation, to register any of its shares of Common Stock (which request shall
state the intended method of disposition thereof), the Corporation will use all
commercially reasonable efforts to cause the shares of Common Stock 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 Corporation,
all to the extent requisite to permit the sale by. the Shareholder (in
accordance with its written request) of such shares of Common Stock so
registered. Alternatively, the Corporation may in its sole discretion include
such shares of Common Stock in a separate registration statement to be filed
concurrently with the registration statement for the securities to be filed by
the Corporation for its own account or for the account of the Apollo Entities.
In the event that any registration pursuant to this Paragraph 11 shall be, in
whole or in part, an underwritten public offering of shares of Common Stock, the
number of shares of Common Stock to be included in such an underwriting may be
reduced (pro rata among the requesting Shareholders based upon the number of
sharps of Common Stock owned by such Shareholders) due to underwriter market
limitations if, and to the extent, that the managing underwriter advises the
Corporation that in its opinion such inclusion would adversely affect the
marketing of the securities to be sold by the Corporation therein. In addition,
if the managing underwriter so advises, for any reason, against the inclusion of
all or any portion of shares or Common Stock owned by Shareholders in the public
offering, then the Shareholders shall only have the right to register shares of
Common Stock therein as so advised by the managing underwriter. It is
acknowledged by the parties hereto, that the rights of any selling Shareholder
to include shares of Common Stock in a registration shall be subordinate to
those of the Corporation and, subject to the foregoing provisions hereto, on a
parity with any Apollo Entity or other person (including BT Investment Partners,
Inc. and MTL Equity Investors, L.L.C. (collectively, the "Purchasers") pursuant
to that certain common stock purchase and shareholders' agreement, dated as of
June 9,1998, by and among the Corporation, the Apollo Entities and the
Purchasers (the "Purchasers Shareholders' Agreement")) selling shares of Common
Stock for its own account so that, except as may be provided pursuant to the two
immediately preceding sentences, cut backs shall be made on a pro rata basis
based on the number of shares of Common Stock held by each such person. Except
as set forth above, there shall be no limit to the number of registrations that
may be requested pursuant to this Paragraph 11.
(b) In connection with each registration pursuant to Paragraph 11(a)
covering an underwritten public offering, each Shareholder selling Shares
pursuant thereto agrees to (i) enter into a written agreement with the managing
underwriter under the same terms and conditions as apply to the Corporation or
the selling shareholders, as applicable and (ii) furnish to the Corporation 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 Corporation in order to comply with federal and applicable state securities
laws
9
(c) If, at any time after giving notice of its intention to
register any stock pursuant to this Paragraph 11 and prior to the effective date
of the registration statement filed in connection with such registration, the
Corporation shall determine for any reason not to register such stock, the
Corporation shall give written notice to all Shareholders and, thereupon, shall
be relieved of its obligation to register any Shares. in connection with such
registration.
(d) The Shares shall cease to be registrable pursuant to this
Paragraph 1 I on the date which is the earlier of (i) the date upon which it is
effectively registered under the Act and disposed of in accordance with any
registration statement covering it, (ii) the date upon which it may be
distributed to the public without limitation pursuant to Rule 144 (or any
similar provision then in force) promulgated under the Act and (iii) the date
four years from the Merger Date.
12. Expenses All expenses incurred by the Corporation in
complying with Paragraph 11, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Corporation, 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, Ire.,
transfer taxes, fees of transfer agents and registrars, costs of insurance and
reasonable fees and disbursements of one counsel for the sellers of Shares, but
excluding any Selling Expenses, are herein referred to as "Registration
Expenses." "Selling Expenses" as used herein mean all underwiting discounts and
selling commissions applicable to the sale of Shares.
The Corporation will pay all Registration Expenses in connection
with each registration statement under Paragraph 11. All Selling Expenses in
connection with each registration statement under Paragraph 11 shall be borne by
the participating sellers of Shares in proportion to the number of shares sold
by each, or by such participating sellers of Shams other than the Corporation
(except to the extent the Corporation shall be a seller of Shares) as they may
agree.
I3. Holdback Agreements Notwithstanding any other provision
hereof, with respect to each and every public offering, each Shareholder agrees
not to offer, sell or otherwise transfer any Shares (except for Shares sold (a)
in such public offering or (b) to a Permitted Transferee (it being understood
for the purposes of this clause (b) only that each Management Shareholder shall
apply the definition of "Permitted Transferee" set forth in paragraph 1(c) above
to himself as if he were ▇▇▇▇▇▇▇)) during the black-out period prior to the
effective date of the applicable registration statement or other offering
document as advised by counsel for the Company and during the period after such
effective date equal to (i) 180 days in the case of an initial public offering
and (ii) 90 days in the case of any other public offering or, in the case of
clause (i) or (ii), such shorter or longer period as may be applicable to
Apollo.
14. Indemnification and Contribution (a) In the event of a registration
of any Shares under the Act pursuant to Paragraph 11, the Corporation will
indemnify and hold harmless, to the full extent permitted by law, each
Shareholder selling Shares thereunder, each underwriter of such Shares
thereunder and each other person, if any, who controls such selling Shareholder
or underwriter with the meaning of the Act or the Securities Exchange Act of
1934, as amended (the "Exchange Act"), against any losses, claims, damages,
liabilities and expenses, joint or several, to which such selling Shareholder,
underwriter or controlling person
10
may become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Shares were registered
under the Act pursuant to Paragraph 11, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will pay or reimburse each such selling Shareholder,
each such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Corporation (i) will not be liable in any such case if and to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with information pertaining to such selling
Shareholder and furnished by any such selling Shareholder, any such underwriter
or any such controlling person, as the case may be, in writing specifically for
use in such registration statement, prospectus, amendment or supplement and (ii)
will not be liable for amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Corporation, such consent not to be unreasonably withheld or delayed.
(b) In the event of a registration of any Common Shares under the Act
pursuant to Paragraph 11, each Shareholder selling Shares thereunder, severally
and not jointly, will indemnify and hold harmless the Corporation, each person,
if any, who controls the Corporation within the meaning of the Act, each officer
of the Corporation who signs the registration statement, each director of the
Corporation, each underwriter and each person who controls any underwriter
within the meaning of the Act, against all losses, claims, damages or
liabilities, joint or several, to which the Corporation or such officer,
director, underwriter or controlling person may become subject under the Act or
otherwise, but only insofar as such losses, claims, damages or liabilities (or
actions in respect thereof), arise out of or are based upon an untrue statement
or alleged untrue statement or omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, made in reliance upon and in conformity with information
pertaining to such selling Shareholder, as such, furnished in writing to the
Corporation by such selling Shareholder specifically for use in such
registration statement under which such Shares was registered under the Act
pursuant to Paragraph 11, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, and will pay or
reimburse the Corporation and each such offices, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided however, that (i) the liability of each selling
Shareholder hereunder shall be limited to the proportion of any such loss,
claim, damage, liability or expense which is equal to the proportion that the
public offering price of the Shares sold by such selling Shareholder under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not in any event to exceed the net proceeds
received by such selling Shareholder from the sale of Shares covered by such
registration statements and (ii) no selling Shareholder shall be liable for
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of such selling Shareholder,
such consent not to be unreasonably withheld or delayed.
11
(c) Promptly after receipt by an indemnified party hereunder of
written notice of any claim or the commencement of any action or proceeding,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party hereunder, notify the indemnifying party in
writing thereof, but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to such indemnified party other
than under this Paragraph 14 and shall only relieve it from any liability which
it may have to such indemnified parry under this Paragraph 14 if and to the
extent the indemnifying party is materially prejudiced by such omission. In case
any such action shall be brought against any indemnified party and the
indemnified party shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be untitled to participate in and, to the
extent it shall wish, to assume and undertake the defense thereof with counsel
reasonably satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume and
undertake the defense thereof, the indemnifying party shall not be liable to
such indemnified party under this Paragraph 14 for any legal or other
professional expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of investigation
and of liaison with counsel so selected; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party, and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified party shall have the right to select
a separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the reasonable fees and expenses
of such separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred. No indemnifying party, in the
defense of any such claim or litigation against an indemnified party, shall
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect of such
claim or litigation, unless such indemnified party shall otherwise consent in
writing. An indemnifying party who is not entitled to, or elects not to, assume
the defense of a claim shall not be obligated to pay the fees and expenses of
more than one counsel for all parties indemnified by such indemnifying party
with respect to such claim, unless any indemnified party reasonably concludes
that there may be legal defenses available to such indemnified party with
respect to such claim which are different from or additional to those available
to any other of such indemnified parties or that a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such claim, in which event the indemnifying party shall be
obligated to pay the reasonable fees and expenses of such additional counsel or
counsels.
(d) In order to provide for just and equitable contribution in any case
in which either (i) any Shareholder exercising registration rights under
Paragraph 11 of this Agreement, or any controlling person of any such
Shareholder, makes a claim for indemnification pursuant to this Paragraph 14 but
it is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and following the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case, notwithstanding the fact that this Paragraph 14 provides
for indemnification in such case, or (ii) contribution under the Act may be
required on the part of any such Shareholder or any such controlling person in
circumstances for which indemnification is provided under this Paragraph 14;
then, and
12
in each such case, the Corporation and such Shareholder shall contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in such proportion as is appropriate to reflect
both the relative benefit received by such Shareholder and the relative fault of
the Corporation and such Shareholder; provided, however, that, in any such case,
(A) no such Shareholder will be required to contribute any amount in excess of
the public offering price of all such Shares offered by it pursuant to such
registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(fj of the Act) will be
entitled to contribution from any person or entity who was not guilty of such
fraudulent misrepresentation. For purposes of the preceding sentence, the
relative benefit received by such Shareholder shall be deemed to be in the same
proportion as the public offering price of its Shares offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement; and the relative fault of the
Corporation and such Shareholder shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission of a material fact relates to information supplied by the
Corporation or by such Shareholder and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
15. Rule 144 Reporting With a view to making available the
benefits of certain rules and regulations of the Securities and Exchange
Commission (the "Commission") which may at any time permit the sale of the
Common Shares to the public without registration, at all times after any
registration statement covering a public offering of securities of the
Corporation under the Act shall have become effective, the Corporation agrees to
use all reasonable efforts to: (a) make and keep public information available,
as those terms are understood and defined in Rule 144 under the Act; (b) use all
reasonable efforts to file with the Commission in a timely manner all reports
and other documents required of the Corporation under the Act and the Exchange
Act; and (c) furnish to each Shareholder forthwith upon request a written
statement by the Corporation as to its compliance with the reporting
requirements of such Rule 144 and of the Act and the Exchange Act, a copy of the
most recent annual or quarterly report of the Corporation, and such other
reports and documents so filed by the Corporation as such Shareholder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such Shareholder to sell any Shares without registration.
16. Preemptive Rights (a) In the event that the Corporation proposes to
issue (a "Proposed Issuance") any Common Stock or any securities containing
options or rights to acquire any Common Stock or any securities convertible into
or exchangeable for Common Stock ("New Securities") to any Apollo Entity or any
Affiliate (as defined below) thereof (collectively, "Apollo") (a "Purchasing
Party"), other than pursuant to the exceptions specified below, and the
Participation Conditions (as defined hereinafter) are met, the Corporation shall
deliver a notice, with respect to such Proposed Issuance (the "Preemptive
Notice"), to each Shareholder (excluding ▇▇▇▇▇▇▇, who shall have no Preemptive
Rights (as defined hereinafter) under this paragraph 16) setting forth the
identity of the Purchasing Party, the period of time within which the Preemptive
Right must be exercised (the "Acceptance Period") and the prices, terms and
conditions of the Proposed Issuance. Each Management Shareholder shall have the
right (the "Preemptive Right"), exercisable as hereinafter provided, to
participate in such issuance of New Securities ("Offered Securities") on a pro
rate at basis in accordance with the respective aggregate number of shares of
Common Stock held by such Management Shareholders on the date of such notice
from the Corporation by purchasing an amount of such
13
New Securities proposed to be issued to Apollo multiplied by a fraction, the
numerator of which shall be the aggregate number of shares of Common Stock owned
by such Management Shareholder on the date of such notice from the Corporation
and the denominator of which shall be the total number of shares of Common Stock
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 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 the Purchasers pursuant to the Purchasers Shareholders'
Agreement. The "Participation Conditions" with respect to a Management
Shareholder shall be as follows: (i) the Management Shareholder at the time of
exercise of the Preemptive Right must be an employee of or consultant to the
Corporation pursuant to a binding written agreement and (ii) the Management
Shareholder at the time of exercise of the Preemptive Right continues to hold
shares of Common Stock. An "Affiliate," for the purposes of this Agreement,
shall mean, as to any person, any other person that directly or indirectly,
through one or more intermediaries, controls, is controlled by or is under
common control with, such person.
(b) Anything to the contrary notwithstanding, the Preemptive
Rights provided for herein shall not be applicable to: (i) any Proposed Issuance
of New Securities, in an amount (assuming exercise of all options, warrants and
rights and conversion and exchange of all convertible and exchangeable
securities included in the New Securities) not to exceed twenty (20%) percent of
the fully diluted Common Stock of the Corporation outstanding on the date of
this Agreement; provided, however. that each Management Shareholder may, at its
option, elect, to the extent Apollo is a Purchasing Party and the Management
Shareholders are not offered the opportunity to exercise their Preemptive Rights
pursuant to this clause (i), to purchase from Apollo at the same purchase price
per share paid by Apollo for the New Securities such number of New Securities
such Management Shareholder would have been entitled to purchase in the event
such Management Shareholder had exercised its Preemptive Right with respect to
such Proposal Issuance (each Management Shareholder must exercise its right
under this clause (i) within fifteen business days of receiving written notice
of the consummation of such Proposed Issuance and the closing of the purchase
and sale between such Management Shareholder and Apollo shall take place as they
may reasonably agree), (ii) 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 employees or members of management of the
Corporation less (B) the number of shares of Common Stock previously purchased
by Apollo pursuant to the provision of this clause (ii) and (iii) any stock
split or Proposed Issuance of New Securities as a dividend.
(c) The Preemptive Rights shall be exercisable by delivery of notice
(the "Purchaser Notice") to the Corporation given within the Acceptance Period
set forth in the Preemptive Notice. If a Management Shareholder shall fail to
respond to the Corporation within the Acceptance Period, such failure shall be
regarded as a rejection of such Management Shareholder's right to exercise such
Stockholder's Preemptive Right. The closing of any purchase by the Management
Shareholders under this Paragraph 16 shall be held at such other time and place
upon which the parties to the transaction may agree. At such closing, the
Management Shareholders participating in the purchase shall deliver by certified
bank check, payment in full for such New Securities and all parties to the
transaction shall execute such additional documents as are otherwise deemed
necessary or appropriate by the Corporation. At
14
such closing, the Corporation may issue and sell to a Purchasing Party such
portion of the Offered Securities as have not been purchased by the Management
Shareholders pursuant to the exercise of their Preemptive Rights at the same
price and on the same terms and conditions as the Offered Securities sold to
Management Shareholders. Unless otherwise determined by the Apollo Entities, the
Purchasing Party shall be bound by the terms and conditions of this Agreement as
though it were a Shareholder hereunder.
(d) In the event of a Proposed Issuance of New Securities,
which Proposed Issuance is subject to the Preemptive Rights under this Paragraph
and which is offered only in combination with the purchase of debt or debt
securities, then the Preemptive Rights shall apply to the combination and a
Management Shareholder exercising his Preemptive Right shall be entitled and
required to purchase his pro rata share of both the debt and equity components
of such combination on the basis set forth in Paragraph 16(a).
17. Certain Agreements (a) Each party agrees as of the date hereof that
each of the following persons shall be a director of the Corporation: ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇. and such
number of persons designated by Apollo Entities.
(b) The Corporation agrees that any transactions between itself
and any Affiliate (including an Apollo Entity) shall be on an arm's-length basis
as determined in good faith by the board of directors of the Corporation in
their reasonable business judgment. The parties agree and acknowledge that the
Corporation will pay the management fees to Apollo, as set forth in the
Management Agreement between Apollo Management, L.P. and the Corporation, dated
as of the date hereof. The parties further agree that Apollo shall be entitled
to a transaction fee of up to one point (1% of value) per transaction as
determined in the sole discretion of Apollo. Except as set forth herein, no
other fees shall be payable to Apollo, except as approved by a majority of the
disinterested directors of the Corporation.
(c) The Corporation agrees to use commercially reasonable
efforts to cause the covenants in its debt agreements to allow the exercise of
the O'Brien sale right contained in Paragraph 8.
18. Confidentiality During the term of this Agreement and at all times
thereafter, each Shareholder agrees that, except to the extent required in the
course of his employment, he will not divulge to anyone (other than the
Corporation or any persons employed or designated by the Corporation) any
confidential knowledge or information relating to the business of the
Corporation or any of its subsidiaries or affiliates, including, without
limitation, all types of trade secrets (unless readily ascertainable from public
or published information or trade sources), secrets (unless readily
ascertainable from public or published information or trade sources), product
design and customer and supplier information. Each Shareholder further agrees
not to disclose, publish or make use of any such knowledge or information for
personal purposes or for the benefit of any persons, firm, corporation or other
entity (other than the Corporation or any persons employed or designated by the
Corporation) without the prior written consent of the Corporation.
19. Financial Statements. The Corporation will provide each Shareholder
with copies of its quarterly (unaudited) and annual audited financial statements
promptly upon
15
completion of such financial statements during any period in which a Shareholder
remains a shareholder, but is not an officer of or consultant to the
Corporation.
20. General Restriction Each Shareholder understands and agrees
that (a) the MIL Securities received pursuant to the Merger Agreement have not
been registered under the Securities Act and are restricted securities; (b) it
will not, directly or indirectly, sell, assign, transfer, grant a participation
in, pledge or otherwise dispose of any MTL Securities (or solicit any offers to
buy or otherwise acquire, or take a pledge of any MTL Securities) except in
compliance with the Securities Act and the terms and conditions of this
Agreement; and (c) any attempt to transfer any MTL Securities not in compliance
with this Agreement shall be null and void and the Corporation shall not, and
shall cause any transfer agent not to, give any effect in the Corporation's
records to such attempted transfer.
21. Legends (a) In addition to any other legend that may be
required, each certificate for shares of MTL Securities that is issued to any
Shareholder shall bear a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED
OR SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT
TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE AMENDED AND
RESTATED SHAREHOLDERS' AGREEMENT DATED AS OF FEBRUARY 10, 1998, COPIES
OF WHICH MAY BE OBTAINED UPON REQUEST FROM MTL INC. OR ANY SUCCESSOR
THERETO."
(b) If any MTL Securities shall become registered under the
Securities Act, the Corporation shall, upon the written request of the holder
thereof, issue to such holder a new certificate evidencing such shares without
the first sentence of the legend required by Paragraph 21(a) endorsed thereon.
If any MTL Securities cease to be subject to any and all restrictions on
transfer set forth in this Agreement, the Corporation shall, upon the written
request of the holder thereof, issue to such holder a new certificate evidencing
such MTL Security without the second sentence of the legend required by
Paragraph 21(a) endorsed thereon.
22. Further Assurances The parties hereto agree to execute and deliver
all such further instruments as may be necessary from time to time to carry out
the provisions of this Agreement.
23. Notices. All offers, acceptance, notices, certificates and other
communications provided for in this Agreement shall be in writing and (except as
otherwise provided in this Agreement) shall be deemed to have been given when
(a) sent by facsimile transmission, (b) sent by a nationally known overnight
delivery service, (c) delivered by hand or (d) mailed by first-class registered
or certified mail in a post-paid envelope, in each case addressed to the
respective persons to be notified as follows: in the case of the Apollo
Representative, c/o Apollo Management, L.P., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq. with
a copy to, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq./▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
16
Esq., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇; in the case of the Shareholders, at their respective addresses appearing
on the signature pages of this Agreement or at such other address as the party
to be notified shall from time to time have furnished to the other parties in
writing.
24. Amendment: Termination No provision of this Agreement may be waived
except by an instrument in writing executed by the party against whom the waiver
is to be effective. This Agreement may be amended only by an instrument executed
by the parties hereto holding 80% of all of the Common Shares held by the
parties hereto on a fully diluted basis or by their successors and assigns;
provided, however, that in the event any amendment materially and adversely
affects any party to this Agreement, this Agreement may not be amended without
such party's approval. Except with respect to Paragraphs 9 through 15, Paragraph
18 and Paragraphs 21 through 25, this Agreement shall terminate automatically
upon the earlier of (i) the tenth anniversary of the date hereof and (ii) at
such time as the Corporation shall be a Public Corporation (as defined below).
For the purposes of the foregoing provision, the term "Public Corporation" means
a corporation with one or more classes of equity securities listed on a national
securities exchange or publicly traded in the over-the-counter market.
25. General (a) This Agreement (i) shall be construed and enforced in
accordance with the laws of the State of New York, (ii) except as set forth in
Paragraph 25(c) below, constitutes the entire agreement, and supersedes any and
all prior agreements and understandings between the parties in respect to the
subject matter hereof, including, without limitation, the Original Agreement,
(iii) shall bind and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, personal representatives,
successors and assigns and (iv) may be executed in two or more counterparts each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument. The parties hereto hereby consent and agree that
they shall commence any action with respect to any claims or disputes between
the parties hereto pertaining to this Agreement or to any matter arising out of
or related to this Agreement in the United States District Court for the
Southern District of New York, so long as the action falls within the subject
matter jurisdiction of such court; in the event any such action shall be
determined by the court to be outside its subject matter jurisdiction, then the
parties agree to commence any such action in the Supreme Court of New York
County, New York and to take such action as may be necessary to effect
assignment of such action to the Commercial Part of that court. The parties
hereto expressly submit and consent in advance to such jurisdiction in any
action or suit commenced in any such court, and hereby waive any objection which
it may have based upon lack of personal jurisdiction, improper venue or forum
non conveniens and hereby consent to the granting for such legal or equitable
relief as is deemed appropriate by such court. Each party hereto irrevocably
consents to the service of process by registered or certified mail, postage
prepaid, to it at its address given in accordance herewith.
(b) The parties hereto acknowledge that irreparable damage would result
if this Agreement is not specifically enforced and that, therefore, the rights
and obligations of the parties under this Agreement may be enforced by a decree
of specific performance issued by a court of competent jurisdiction, and
appropriate injunctive relief may be applies for and granted in connection
therewith. Such remedies shall, however, be cumulative and not exclusive and
shall be in addition to any other remedies which any party may have under this
Agreement or otherwise. This Agreement may be executed simultaneously in two or
more counterparts, each
17
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(c) The restrictions with respect to Shares set forth herein
shall be in addition to and shall is no way limit any other restrictions on the
Shares set forth in any other agreement, if any.
(d) The section and other headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(e) To the extent that any provision of this Agreement shall be
invalid or unenforceable, it shall be considered deleted herefrom and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect. In furtherance and not in limitation of the
foregoing, if any provision, term, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid,
void, unenforceable or against its regulatory policy, then such provision, term,
covenant or restriction shall be construed to cover only that duration, extent
or activities which may be validly and enforceably covered and the remainder of
the provisions, terms covenants and restrictions contained herein shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
(f) This agreement shall be deemed to be effective as of the
Merger Date.
18
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the day and the year first above written.
MTL INC.
By: /s/ ???
----------------------------
Name:
Title:
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P.,
Its General Partner
By: Apollo Capital Management II, Ins.
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
APOLLO OVERSEAS PARTNERS III, L.P.
By: Apollo Advisors II, L.P.,
Its General Partner
By: Apollo Capital Management II, Ins.
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
APOLLO UK FUND III, L.P.
By: Apollo Advisors II, L.P.,
Its General Partner
By: Apollo Capital Management II, Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SHAREHOLDERS:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇.
SHAREHOLDERS:
-------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇.
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇.
EXHIBIT A
# of Shares
Shareholder of Common Shares
----------- ----------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ 66,892
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇. 30,239
▇▇▇▇▇▇ ▇▇▇▇▇▇ 35,135
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 40,541
EXHIBIT B
JOINDER IN
SHAREHOLDERS' AGREEMENT
In consideration of the transfer to (him) (her) of ____shares of Common
Stock, par value $.O1 per share, of MTL Inc. (the "Corporation") and the
registration of such transfers on the books of Corporation, _______("Additional
Shareholder"), and the Corporation agree that, as of the date written below,
Additional Shareholder shall become a party as a Shareholder to MTL Inc.
Shareholders' Agreement dated as of February __, 1998 (the "Shareholders'
Agreement"), and shall be bound by all of the terms and provisions of the
Shareholders' Agreement, as though he was an original party thereto and was
included in the definition of "Shareholder" as used therein.
Executed as of the ________ day of _____________, ____.
[ ]
By:
-------------------
Title:
-------------------
Shareholder
