MT INVESTORS INC.
FORM OF PARTICIPANTS' SUBSCRIPTION AGREEMENT
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AGREEMENT made as of [Date] by and among MT INVESTORS INC., a Delaware
corporation (the "Corporation"), and each of the persons, corporations,
partnerships and other entities whose names are subscribed hereto
("Subscribers").
WHEREAS, each of the Subscribers has heretofore entered into a
Commitment Agreement (individually, a "Commitment Agreement," and collectively,
the "Commitment Agreements") with AEA Advisers Inc., in which such Subscriber
agreed to invest in equity ownership interests in the amounts and at the times
called upon (a "Call"); and
WHEREAS, a Call has been made under the Commitment Agreements
for the parties thereto to purchase up to a maximum of 1,200,000 shares of Class
A Common Stock of the Corporation at $100 per share; and
WHEREAS, the authorized capital stock of the Corporation is
being increased to 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"), with the respective terms
and provisions set forth in the proposed form of Restated Certificate of
Incorporation and the amendment thereto, which, together with the By-Laws of the
Corporation, are attached hereto as Exhibit A; and
WHEREAS, the Corporation intends to issue and sell (i) 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"), (ii) 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"), (iii) approximately
53,489 shares of Class A Stock and approximately 15,282 shares of Class C Stock
to members of senior management of ▇▇▇▇▇▇▇-▇▇▇▇▇▇ (as defined below) or any of
its affiliates, pursuant to subscription agreements (the "GMC Subscription
Agreements") and (iv) approximately 94,157 shares of Class A Stock and
approximately 26,902 shares of Class C Stock to other employees of
▇▇▇▇▇▇▇-▇▇▇▇▇▇, or any of its affiliates, pursuant to subscription agreements
(the "Employee Subscription Agreements," and, together with the Ciba
Subscription Agreement, the Investors' Subscription Agreements and the GMC
Subscription Agreements, the "Other Subscription Agreements"); and
WHEREAS, the Corporation desires to issue and sell to the
Subscribers, and the Subscribers desire to purchase, pursuant to this Agreement
in fulfillment of the Call, 1,200,000 shares of the Class A Stock, the proceeds
of which, together with the proceeds and other consideration from the sale of
shares of the Class A Stock and the Class C Stock pursuant to the Other
Subscription Agreements, will be contributed to ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Holding Inc., a
Delaware corporation and a direct wholly-owned subsidiary of the Corporation
("Holding"), which may in turn contribute such proceeds to MT Acquisition Corp.,
a Delaware corporation and an indirect wholly-owned subsidiary of the
Corporation ("Acquisition") or an assignee of Holding or Acquisition, which will
enable Holding, Acquisition or such assignee to acquire all of the outstanding
capital
stock or other equity interests and certain indebtedness of the entities
comprising the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group (collectively, "▇▇▇▇▇▇▇-▇▇▇▇▇▇") 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, the Corporation intends to reserve 333,117 shares of
the Class A Stock for stock options or other incentive arrangements for certain
members of management of ▇▇▇▇▇▇▇-▇▇▇▇▇▇ or its affiliates;
NOW, THEREFORE, the parties agree as follows:
Section 1. Agreement to Sell and Purchase Securities. The
Corporation agrees to sell to each Subscriber, and each Subscriber subscribes
and agrees to pay for, upon the terms and conditions hereinafter set forth, that
number of shares of the Class A Stock set forth on the Investment Confirmation
Form attached hereto, at a purchase price of $100 per share. The shares of the
Class A Stock to be purchased by the Subscribers pursuant to this Agreement are
hereinafter sometimes referred to as the "Shares."
Section 2. Payment for Shares.
(a) Each Subscriber, promptly after executing this Agreement,
will make payment for the Shares being purchased by such Subscriber by
delivering to The Bank of Nova Scotia Trust Company of New York, as Agent for
the Corporation (the "Agent"), pursuant to an Agency Agreement, a copy of which
is attached hereto as Exhibit B (the "Agency Agreement"), funds in the full
amount of the purchase price of the Shares being purchased by such Subscriber.
Each Subscriber, by executing this Agreement, approves and agrees to the
provisions of the Agency Agreement and authorizes the delivery by the
Corporation of such Subscriber's Shares by insured or registered mail or other
means selected by the Corporation in its sole discretion.
(b) In the event the acquisition of ▇▇▇▇▇▇▇-▇▇▇▇▇▇ pursuant to
the Purchase Agreement is not consummated for any reason, the Corporation will
cancel this Agreement and refund to the Subscriber the full amount paid for the
Shares purchased by such Subscriber.
Section 3. Representations and Warranties by the Corporation.
The Corporation represents and warrants to the Subscribers that:
(a) The Corporation has not carried on any business or had any
revenues or income, and does 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 ▇▇▇▇▇▇▇-▇▇▇▇▇▇.
(b) The Corporation has delivered a copy of the confidential
memorandum entitled "Executive Summary Concerning the Acquisition of the
Entities Comprising the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ 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
Acquisition and Holding with the Securities and Exchange Commission with respect
to the offering of debt securities of Acquisition, to each of the Subscribers.
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(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 being
purchased pursuant to this Agreement and the shares of the Class A Stock, the
Class B Stock and the Class C Stock being purchased pursuant to 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 Ciba-Geigy AG and all of the outstanding shares of the
Class C Stock as of the date of issuance of the Shares will be owned by AEA,
stockholders and management employees of AEA or their associates and the
subscribers under the Other Subscription Agreements.
(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, 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 Subscribers.
Each Subscriber for himself represents, warrants and agrees that:
(a) Such 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 such Subscriber's control.
(b) Such 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.
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(c) Such Subscriber has read, reviewed and is familiar with
the Memorandum, this Agreement and the exhibits attached hereto. 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, ▇▇▇▇▇▇▇-▇▇▇▇▇▇ and the transaction described in the Memorandum and
the Purchase Agreement, as the Subscriber may deem advisable or appropriate.
(d) Such 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 7 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.
(e) Such 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 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 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 such Subscriber, or any instrument, contract or other agreement to
which such Subscriber is a party or by or to which such Subscriber is bound or
subject.
Section 5. Opinion of Counsel. Each Subscriber shall receive,
with the stock certificate for the Shares being purchased by such Subscriber, an
opinion from ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel of AEA, 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
non-assessable;
(iii) The Corporation has 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 each of the Subscribers, is a legal, valid
and binding
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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 this 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.
Section 6. 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 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 7. Registration of Shares.
7.01 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
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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 7.01 which bears the legend set forth above is hereinafter
in this Section 7 referred to as a "Restricted Certificate."
7.02 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 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 untransferred balance of the securities
evidenced by such Restricted Certificate) shall bear the restrictive legend set
forth in Section 7.01 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; and
(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.
7.03 Registrations Under the Securities Act.
(a) All shares which at the time are evidenced by Restricted
Certificates and all other shares of the Class A Stock, the Class B Stock and
the Class C Stock which at the time are evidenced by stock certificates bearing
restrictive legends substantially similar to those set forth in Section 7.01
above pursuant to Subscription Agreements which contain or are subject to
provisions substantially similar to this Section 7.03 are hereinafter in this
Section 7 referred to collectively as "Restricted Securities." As soon as
practicable after receipt by the Corporation of each Qualified Request (as
defined in
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subparagraph (i) below) from one or more holders of Restricted
Securities to register under the Securities Act part or all of the Restricted
Securities held by such holder or holders, the Corporation will cause a
Registration Statement on Form S-1 (or on Form S-2 or Form S-3 if either such
form can be used) under the Securities Act, or any comparable form then in
force, to be filed and shall use its best efforts to cause the Registration
Statement to become effective, subject to the following:
(i) If no securities of the Corporation theretofore
have been sold pursuant to a Registration Statement under the
Securities Act, a Qualified Request shall be a written
request or requests to the Corporation from one or more
persons who hold Restricted Securities evidencing securities
which aggregate at least 51% of the sum of all outstanding
shares of the Class A Stock, the Class B Stock and the Class
C Stock which are then Restricted Securities. After
securities of the Corporation first have been sold pursuant
to a Registration Statement under the Securities Act, a
Qualified Request shall be a written request or requests to
the Corporation from one or more persons who hold Restricted
Securities evidencing securities which aggregate at least 25%
of the sum of all outstanding shares of the Class A Stock,
the Class B Stock and the Class C Stock which are then
Restricted Securities, and which have an estimated value of
no less than $5,000,000;
(ii) The Corporation shall give written notice to
all other holders of Restricted Securities of its intention
to file such a Registration Statement at least 10 days prior
to the filing thereof, and if requested in writing by any
such holder within 5 days after receipt of such notice, the
Corporation will include in such Registration Statement any
Restricted Securities held by such holder;
(iii) If such Registration Statement is for a
prospective underwritten offering and in the opinion of the
prospective underwriters the inclusion of all of the
securities requested by holders of Restricted Securities
would be detrimental to the prospective offering, the
Corporation may reduce the amount of securities to be
included from all holders who requested to be included. In
making such reduction, the Corporation shall include in the
Registration Statement for each holder requesting inclusion
the same proportion of his total holdings at that time of
securities of the Corporation which are Restricted Securities
as each other holder who requested inclusion;
(iv) The Corporation shall be required to include in
any such Registration Statement only those Restricted
Securities as to which (x) in the opinion of counsel to the
Corporation or to the holder thereof, registration of the
securities proposed to be sold or otherwise disposed of under
the Securities Act is required as a matter of law for such
sale or other disposition, or (y) the holder advises the
Corporation in writing that prospective underwriters believe
that in order to effect the proposed disposition of the
securities, registration is desirable even if not legally
necessary;
(v) The Corporation shall not be required to file
any such Registration Statement within six months after the
effective date of
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any earlier Registration Statement pursuant to this Section
7.03(a) or the comparable provisions of the Other
Subscription Agreements or any other agreements relating to
any of the Restricted Securities, nor shall it be required to
file a total of more than three Registration Statements
pursuant to this Section 7.03(a) or the comparable provisions
of the Other Subscription Agreements or any other agreements
relating to any of the Restricted Securities;
(vi) Securities to be offered by the Corporation or
by persons other than holders of Restricted Securities shall
not be included in any such Registration Statement unless the
holder or holders initially requesting such registration
shall consent thereto;
(vii) The Corporation will pay the expense of such
registration, except that each holder of Restricted
Securities whose securities are included in such registration
shall pay all underwriting discounts and commissions
applicable to his securities and all legal fees and expenses
of his own counsel, if any; and
(viii) If the Corporation is, at the time it
receives such Qualified Request, filing or is about to file a
Registration Statement for an offering of its securities and
the Board of Directors of the Corporation reasonably believes
that such offering would be adversely affected by the
registration requested, the Corporation shall be entitled to
postpone the filing of any such requested Registration
Statement until 90 days after the effective date of the
Registration Statement for the Corporation's offering.
(b) In the event that at any time while Restricted Securities
are outstanding, the Corporation proposes to file a Registration Statement under
the Securities Act registering shares of its stock of any class on a form other
than Form S-8 or Form S-18, it will give written notice to each holder of
Restricted Securities at least 30 days prior to the date of filing of the
proposed Registration Statement. Upon written request by any such holder within
15 days after receipt of such notice, the Corporation will include in the
securities to be registered by such Registration Statement all of the securities
of the Corporation that such holder desires to sell, subject to the following:
(i) The Corporation will pay the expense of such
registration, except that each holder of Restricted
Securities whose securities are included in such registration
shall pay all underwriting discounts and commissions
applicable to his securities and all legal fees and expenses
of his own counsel, if any; provided that if the expense of
such registration is being borne by a person other than the
Corporation, each holder of Restricted Securities whose
securities are included in such registration shall pay his
pro rata share of the incremental expense of his securities
being included in such registration;
(ii) The Corporation shall have received an opinion
of counsel to such holder or of counsel to the Corporation
stating that registration under the Securities Act of the
securities proposed to be sold or otherwise disposed of by
the holder is required as a matter of law; and
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(iii) If such Registration Statement is for a
prospective underwritten offering, the holder agrees to sell
his securities, if the Corporation so requests, on the same
basis as the other securities covered by such Registration
Statement are being sold. The Corporation may withdraw any
such Registration Statement before it becomes effective or
postpone the offering of securities contemplated by such
Registration Statement without any obligation to the holder
of any Restricted Securities. If such Registration Statement
is for a prospective underwritten offering by the Corporation
for its own account and in the opinion of the prospective
underwriters or the Corporation the inclusion in the
Registration Statement of part or all of the securities
requested by the holder or holders of Restricted Securities
would be detrimental to the prospective offering, the
Corporation may (x) reduce the amount of securities to be
included from all holders who requested to be included (in
making such reduction, the Corporation shall include in the
Registration Statement for each holder requesting inclusion
the same proportion of his total holdings at that time of
Restricted Securities as each other holder who requested
inclusion) or (y) refuse to include any securities held by
any or all such holders, in which case it need not give the
notice referred to in the first sentence of this Section 7.03 (b).
(c) In connection with any Registration Statement filed
pursuant to (a) or (b) of this Section 7.03, the Corporation shall file any
post-effective amendment or amendments to the Registration Statement which may
be required under the Securities Act during the period reasonably required to
effect the distribution contemplated thereby, provided that the Corporation
shall not be required to file any post-effective amendment to any Registration
Statement described in (a) or (b) of this Section 7.03 more than 90 days after
the effective date of the Registration Statement.
(d) During the period for which the Corporation is required to
file and keep effective a Registration Statement pursuant to this Agreement, the
Corporation shall furnish each selling securityholder with the number of copies
of the Registration Statement (including exhibits) and Prospectuses that he
reasonably requests for the purposes contemplated by the Securities Act. The
Corporation shall notify each selling securityholder selling securities covered
by such Registration Statement during the period such Registration Statement is
required to remain effective, or at any time when a Prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of any
event as a result of which the Registration Statement or the Prospectus
contained in such Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing. Each selling securityholder agrees,
upon receipt of such notice, forthwith to cease making offers and sales of such
securities pursuant to such Registration Statement or deliveries of the
Prospectus contained therein for any purpose and to return to the Corporation
the copies of such Prospectus not theretofore delivered by such selling
securityholder. Subject to Section 7.03(c) above, at the request of such selling
securityholder, the Corporation shall prepare and furnish to such selling
securityholder a reasonable number of copies of any supplement to or an
amendment of such Prospectus that may be necessary so that, as thereafter
delivered to the purchaser of such shares, such Prospectus shall not include any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing. The Corporation shall promptly
notify all selling securityholders of any stop order or similar proceeding
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initiated by State or Federal regulatory bodies and, subject to Section 7.03(c)
above, use its best efforts to take all necessary steps expeditiously to remove
such stop order or similar proceeding.
(e) As a condition to the Corporation's obligation under (a),
(b) and (c) of this Section 7.03 to cause the Registration Statement or an
amendment to be filed or shares to be included in the Registration Statement,
the holder of any Restricted Securities which are to be included in such
Registration Statement shall provide such information and execute such documents
(including any agreement or undertaking relating to expenses, indemnification or
other matters contemplated by this Agreement) as may reasonably be required by
the Corporation in connection with such registration.
(f) Any distribution of securities registered pursuant to this
Agreement shall be made in an orderly manner and without undue disruption of any
then existing market for securities of the Corporation.
(g) Notwithstanding the foregoing, in connection with any
Registration Statement provided for in this Agreement, the Corporation shall not
be obligated to furnish any audited financial statements other than the audited
financial statements customarily prepared at the end of its fiscal year or to
furnish any unaudited financial information with respect to any period other
than interim quarterly periods, unless the holder or holders whose securities
are to be included in such Registration Statement undertake to pay the
additional cost to the Corporation for such financial statements or financial
information.
(h) After the first Registration Statement under the
Securities Act for any securities of the Corporation shall have become
effective, the Corporation will use its best efforts to file in timely fashion
all reports required to be filed by it pursuant to the Securities Exchange Act
of 1934 and, upon the request of any holder of Restricted Securities, to furnish
such holder such information as may be necessary to enable him to effect sales
of his securities pursuant to Rule 144 of the Securities and Exchange
Commission, as such rule may from time to time be amended or supplemented.
(i) As expeditiously as possible after the effectiveness of
any Registration Statement provided for in this Section 7.03, the Corporation
will deliver in exchange for any stock certificate evidencing securities so
registered, new stock certificates not bearing the legend set forth in Section
7.01 of this Agreement. In the event that any of such securities remain unsold
when such Registration Statement ceases to be effective, the stock certificates
not bearing such legend evidencing such unsold securities shall be delivered to
the Corporation in exchange for stock certificates with such legend.
7.04 Other Matters.
(a) State Securities Laws. In connection with the offering of
any securities registered pursuant to this Section 7, the Corporation shall use
its best efforts to qualify or register the securities to be sold under the
securities or "Blue Sky" laws of such jurisdictions as may be reasonably
requested by the holder of any securities so registered; provided, however, that
the Corporation shall not be obligated to qualify as a foreign corporation to do
business under the laws of any such jurisdiction in which it is not then
qualified or to file any general consent to service of process. The expense of
such qualification or registration shall be borne by the party or parties
bearing the expenses of the related registration under the Securities Act.
(b) Earnings Statement. The Corporation will, at its first
quarterly reporting date at which it can do so, make generally available to its
securityholders an
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earnings statement covering a period of at least twelve
months beginning after the effective date of each Registration Statement
including any Restricted Securities.
7.05 Indemnification. In connection with any registration of
securities pursuant to this Agreement, to the extent permitted by law, the
Corporation shall indemnify the offering securityholders and the offering
securityholders shall indemnify the Corporation in the manner provided in this
Section 7.05:
(a) The Corporation shall indemnify and hold harmless each
offering securityholder, each officer and each director, if any, of such
offering securityholder, each underwriter, if any, for the sale or distribution
of such offering securityholder's securities, and each person, if any, who
controls such offering securityholder or underwriter within the meaning of the
Securities Act, against all losses, claims, damages or liabilities, joint or
several, to which such offering securityholder, officer, director, underwriter
or controlling person may become subject, under the Securities 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,
Prospectus or any amendment or supplement thereto, 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, subject to Section 7.05(c) of this Agreement, the Corporation shall
reimburse each offering securityholder, officer, director, underwriter and
controlling person, for any legal or other expenses reasonably incurred by such
offering securityholder, officer, director, underwriter or controlling person,
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Corporation shall not be
required to indemnify and hold harmless or reimburse an offering securityholder,
officer, director, underwriter or controlling person, as the case may be, to the
extent that any such loss, claim, damage, liability or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission in any document made in reliance upon and in conformity with
written information furnished to the Corporation by or on behalf of such
offering securityholder, officer, director, underwriter or controlling person
for use in the preparation of such documents.
(b) Each offering securityholder shall indemnify and hold
harmless the Corporation, each of its directors and officers, each person, if
any, who controls the Corporation within the meaning of the Securities Act, and
each other offering securityholder against all losses, claims, damages or
liabilities to which the Corporation or any such director or officer or
controlling person may become subject, under the Securities 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 or alleged untrue statement
of any material fact contained in any Registration Statement, Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case, to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Corporation by and on behalf of such
offering securityholder for use in the preparation thereof; and subject to
Section 7.05(c), such offering securityholder shall reimburse the Corporation or
any such director or officer, offering securityholder or controlling person for
any legal or other expenses reasonably incurred by the Corporation or any such
director or officer or offering securityholder or controlling person in
connection with investigating or defending against any such loss, claim, damage,
liability or action; provided, however, that the maximum amount of liability in
respect of such indemnification shall be limited, in the case of any such
offering securityholder, to an amount equal to the net proceeds
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actually received by such offering securityholder from the sale of securities
effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party under (a)
or (b) above of notice of the commencement of any action, the indemnified party
shall notify the indemnifying party. The failure to so notify the indemnifying
party shall relieve it from any liability hereunder with respect to the action
but not for any other liability which it may have to any other party. In case
any such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to assume and control the defense of the action at its expense and if
the indemnifying party gives notice to such indemnified party of its election to
assume and control the defense, the indemnifying party will not be liable to
such indemnified party for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense or investigation of the
action.
7.06 Standby.
(a) Each holder of Restricted Securities agrees that, with
respect to any Registration Statement under the Securities Act that the
Corporation may file (other than on Form S-8), such holder will not sell any
securities of the Corporation (whether or not such securities are Restricted
Securities, and however acquired) other than securities, if any, of such holder
included in such Registration Statement, for a period of at least 5 days before,
and until 90 days after, the date such Registration Statement is declared
effective, provided that notice of the proposed and actual effective dates of
such Registration Statement has been given to such holder.
(b) The Corporation agrees that any registration rights that
it may grant with respect to its securities subsequent to the date of this
Agreement (other than in the Other Subscription Agreements and securities issued
pursuant to employee stock option plans) will provide that upon receipt of a
request from a holder or holders of Restricted Securities pursuant to Section
7.03(a) of this Agreement, the Corporation shall not be obligated to file a
Registration Statement under the Securities Act at the request of any holder or
holders of subsequently issued securities of the Corporation until at least 90
days after the date on which the Registration Statement filed pursuant to
Section 7.03(a) of this Agreement becomes effective.
7.07 Mergers, Etc. The Corporation agrees that, as a condition
to any merger, consolidation or the sale of all or substantially all of its
assets in exchange for securities of another company, it will use its best
efforts to require the surviving, consolidated or purchasing corporation to
enter into an agreement to register the securities of such surviving,
consolidated or purchasing corporation, to be received by the holders of
Restricted Securities, on substantially the same terms and provisions as are
provided in this Agreement.
7.08 Assignment. The registration rights contained in this
Agreement shall be transferable by a Subscriber or transferee of a Subscriber to
any person who acquired Restricted Securities from such Subscriber or transferee
(including any pledgee but excluding any person who acquires such shares in a
transaction with respect to which a Registration Statement under the Securities
Act is effective at the time or in a sale complying with Regulation A or Rule
144 of the Securities and Exchange Commission), provided that such person agrees
to be bound by the terms and provisions of this Agreement.
7.09 Class B Stock and Class C Stock. The Corporation will
obtain from each holder of outstanding shares of the Class B Stock and the Class
C Stock who is not a
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party to this Agreement or the Other Subscription
Agreements a written agreement to be bound by all of the provisions of this
Section 7, whereupon each such holder shall be entitled to all of the rights and
benefits of a holder of Restricted Securities under this Section 7.
Section 8. Fees. The Corporation will pay, and save each
Subscriber 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 each Subscriber by mail,
insured as to the value thereof, the Shares purchased by such Subscriber. The
Corporation further agrees that it will pay, and will save each 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 each Subscriber harmless from all issue taxes in respect
of the issuance of the Shares.
Section 9. 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 10. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be signed by the Corporation and
one or more Subscribers and all of which shall be deemed to be one and the same
agreement binding upon the Corporation and each of the Subscribers.
Section 11. 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 Subscribers at the addresses set
forth opposite their respective names below or such other address as any such
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 12. 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
Subscribers for Shares for which the purchase price represents more than 50% of
the aggregate purchase price of all Shares for which subscriptions under this
Agreement have been obtained (subject to Section 17 hereof).
Section 13. 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 14. 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 15. 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
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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 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 16. Holder of Regulated Shares. The Corporation agrees
that it will not be a party to any merger, consolidation, recapitalization or
other transaction pursuant to which any Subscriber who holds Regulated Shares is
required, as a holder of Shares to take (i) any voting securities which would
cause such Subscriber to violate any law, regulation or other requirement of any
governmental authority applicable to such Subscriber and its affiliates, or (ii)
any securities convertible into voting securities which if such conversion took
place would cause such Subscriber to violate any law, regulation, rule or other
requirement of any governmental authority applicable to such Subscriber and its
affiliates. "Regulated Shares" means any of the Shares which are owned by a
person which is subject to any law, regulation or other requirement of any
governmental authority prohibiting such person from owning voting securities or
otherwise limiting the quantity of voting securities which such person may own,
control or have the power to vote (including, but not limited to, the Bank
Holding Company Act); provided that if such securities are transferred to a
person which is not subject to any such law, regulation or other requirement of
any governmental authority, such securities shall cease to be Regulated Shares.
Each Subscriber who holds Regulated Shares agrees that it will cooperate with
the Corporation in endeavoring to arrange any such merger, consolidation,
recapitalization or other transaction in such a manner that such Subscriber
would not be required to take voting securities or securities convertible into
voting securities which would cause such violation, including without limitation
such Subscriber's accepting non-voting securities which in the judgment of the
Board of Directors of the Corporation are of equivalent value and have
equivalent equity characteristics. The provisions of this Section 16 shall apply
to any Subscriber's transferee who holds Regulated Shares, but only if (x) such
transferee is a parent or subsidiary of the Subscriber or another subsidiary of
the parent, or (y) prior to transfer the Subscriber shall have given all other
holders of the Shares written notice of the proposed transfer and an opportunity
during a period of not less than 30 days to purchase the Shares proposed to be
transferred upon the same terms and conditions as the prospective transferee
(such purchase by the holders of Shares to be in proportion to their holdings of
Securities and with right of overcall).
Section 17. 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 this
Agreement (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 subscribers to the Class A Stock under the
Other Subscription Agreements (the "Other Subscribers") 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 the Other Subscribers as the number of shares of
Participants' Shares being sold bears to the total number of then outstanding
Participants' Shares. The Corporation further agrees to cause the aggregate
consideration payable to the holders of the Class A Stock, Class B Stock and
Class C Stock of the Corporation in any merger or other transaction in which the
Corporation or the outstanding shares of capital stock of the Corporation shall
be acquired to be allocated in a manner that respects the respective liquidation
preferences of each such class of stock as set forth in the Corporation's
charter. This Section 17 shall not be eliminated or amended without the prior
written consent of (i) holders of a majority of the outstanding shares of the
Shares, and (ii) holders of a majority of outstanding shares of the Class A
Stock held by the Other Subscribers.
IN WITNESS WHEREOF, this Agreement has been duly executed as
of the date first above written.
MT INVESTORS INC.
c/o AEA Investors Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
By___________________________________
Vice President
SUBSCRIBER
If Individual:
Print Name___________________________
Signature____________________________
If Corporation, Partnership or Trust:
_____________________________________
[print or type name of entity]
By:__________________________________
Name:________________________________
Title:_______________________________
Subscriber's Taxpayer I.D. No.:
_____________________________________
Subscriber's address for notices:
_____________________________________
_____________________________________
_____________________________________
Nominee Registration
____________________
If shares of the Class A Stock are to be issued in the name of
the Subscriber's nominee, such nominee's name and address are as follows:
Nominee's name____________________________ Address_____________________________
_____________________________
_____________________________
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