Letter should be from the ASCP Funds] September 28, 2009
Exhibit
(b)(2)
[Letter should be from the ASCP Funds]
September
28, 2009
ASP GT Holding Corp.
ASP GT Acquisition Corp.
c/o American Securities LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
ASP GT Acquisition Corp.
c/o American Securities LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to that certain Agreement and Plan of Merger (as may be amended, modified or
supplemented from time to time, the “Merger Agreement”) of even date herewith, by and among
ASP GT Holding Corp., a Delaware corporation (“Parent”), ASP GT Acquisition Corp. a
Delaware corporation and wholly-owned subsidiary of Parent (“Buyer”), and GenTek Inc., a
Delaware corporation (the “Company”), pursuant to which Buyer intends to commence a tender
offer (the “Offer”) to acquire all of the issued and outstanding capital stock of, and then
merge with and into the Company, with the Company continuing as the surviving corporation (the
“Merger” and, collectively with the Offer, the “Acquisition”). Terms used but not
defined herein shall have the meanings set forth in the Merger Agreement.
In connection with the Acquisition, each of American Securities Partners V, L.P., American
Securities Partners V(B), L.P. and American Securities Partners V(C), L.P. (collectively, the
“ASCP Funds”) is pleased to confirm that it hereby commits and undertakes, severally and
not jointly, to provide or cause to be provided to Parent and Parent shall contribute to Buyer, on
the terms and subject to the conditions and assumptions set forth herein, the aggregate amount set
forth opposite its name on Schedule I attached hereto (with respect to each ASCP Fund, its
“Equity Commitment Amount”) for the purpose of financing a portion of the purchase price of
the Acquisition. Each of the ASCP Funds will not be under any obligation under any circumstance to
contribute or cause to be contributed to Parent or Buyer any amount in excess of the Equity
Commitment Amount and each of the ASCP Funds shall not have any liability arising out of this
commitment letter (the “Commitment Letter”) or otherwise to Parent or Buyer or any person
in excess of the Equity Commitment Amount.
1. Conditions. Our financing will be subject to the satisfaction or waiver of all
conditions to the Offer contained in Annex I of the Merger Agreement and all conditions to
the closing of the Merger contained in Article 6 of the Merger Agreement.
2. Duration of this Letter. This Commitment Letter and the commitment contained
herein shall terminate upon the earlier of (i) the consummation of the Acquisition and (ii) the
termination of the Merger Agreement in accordance with its terms. Upon any such termination
of
this letter, any obligations hereunder will terminate and no party shall have any liability
whatsoever to any other party, except for any liability arising out of any breach hereof
occurring prior to such termination and except that paragraphs 2, 3 and 5 shall survive such
termination.
3. Publicity. Any publicity relating to our equity financing or involvement in the
Acquisition and the method of its release shall be approved in advance and in writing by the ASCP
Funds.
4. Amendments. No amendment, waiver or modification of any provision of this
Commitment Letter shall become effective unless the same shall be in writing and signed by each of
the parties hereto; provided, however, any amendment, waiver or modification adversely affecting
the rights of the Company as a third party beneficiary hereto, including, without limitation any
amendment, waiver or modification to the Commitment Amount, paragraph 2 and paragraph 5 shall
require the prior written consent of the Company.
5. Third Party Beneficiaries. This Commitment Letter may be relied on only by Xxxxx
and the Company, which is an express third party beneficiary of this Commitment Letter. Except as
set forth in the preceding sentence, nothing herein is intended to confer, expressly or by
implication, upon any other person or entity any right or remedy under or by reason of this
Commitment Letter, whether as a purported third party beneficiary or otherwise. In no event shall
Buyer or the Company be entitled to specific performance against the ASCP Funds with respect to
their obligations hereunder.
6. Remedies. The Parent Termination Fee (as defined in Section 7.2(b)(iv) of
the Merger Agreement) shall, and is intended to be, the sole and exclusive direct or indirect
remedy available to the Company against Buyer, Parent and the ASCP Funds in respect of any
liabilities or obligations arising under, or in connection with, the Merger Agreement and the
transactions contemplated thereby and this letter agreement, including in the event that Parent or
Buyer breaches its obligations under the Merger Agreement or this letter agreement. In connection
with any breach, termination or expiration of the Merger Agreement or this letter agreement,
failure to consummate the Offer or any claim, suit, proceeding, litigation or action relating
thereto, the ASCP Funds shall not, under any circumstances, be obligated to contribute to Buyer or
pay to the Company more than the Parent Termination Fee. Payment of the Parent Termination Fee
will fully, unconditionally and irrevocably release the ASCP Funds and all Related Persons (as
defined in paragraph 8 below) from all liability to the Company and the Purchaser (and any other
person claiming by, through or on behalf of any of them by way of subrogation, third-party
beneficiary rights or otherwise, including pursuant to the terms of this Commitment Letter).
7. Governing Law; Counterparts; Entire Agreement This Commitment Letter shall be
governed by the laws of the State of New York, without regard to the principles of conflicts of
laws thereof that would cause the application of the laws of another jurisdiction. This Commitment
Letter may be executed in any number of counterparts, including by facsimile transmission, each of
which shall be an original and all of which, when taken together, shall constitute one agreement.
This Commitment Letter sets forth the entire understanding with respect
to the subject matter hereof and supersedes any prior or contemporaneous understandings with respect thereto, written or
oral.
8. Non-Recourse. Notwithstanding anything that may be expressed or implied in this
Commitment Letter, Parent, Buyer and any other party in interest to this Commitment Letter
acknowledge and agree that (a) no recourse hereunder or under any documents or instruments
delivered in connection herewith may be had against any officer, agent or employee of the ASCP
Funds, any direct or indirect holder of any equity interests or securities of the ASCP Funds
(whether such older is a limited or general partner, member, stockholder or otherwise), any
affiliate of the ASCP Funds, or any direct or indirect director, officer, employee, partner,
affiliate, member, controlling person or representative of any of the foregoing (any such person or
entity, a “Related Person”), whether by the enforcement of any judgment or assessment or by
any legal or equitable proceeding (whether in contract or tort), or by virtue of any statute,
regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be
imposed on or otherwise be incurred by Related Persons under this Commitment Letter or any
documents or instruments delivered in connection herewith, the Acquisition or the Merger Agreement,
or for any claim based on, in respect of or by reason of such obligations or by their creation.
9. Assignment; Reliance. This Commitment Letter and the ASCP Funds’ commitment
hereunder shall not be assignable to any other person without the prior written consent of the
other parties hereto and the Company, and any attempted assignment without such consent shall be
null and void and of no force and effect, except that the ASCP Funds may assign their commitments
hereunder to an affiliate of the ASCP Funds; provided, however, that
notwithstanding any such assignment, the ASCP Funds shall remain liable to perform all of their
obligations hereunder. The ASCP Funds acknowledge that the Company has entered into the Merger
Agreement in reliance upon, among other things, the ASCP Funds’ commitment set forth herein.
10. Confidentiality. This Commitment Letter shall be treated as confidential and is
being provided to Parent and Buyer solely in connection with the contemplated Acquisition and may
not be used, circulated, quoted or otherwise referred to in any document, except with the prior
written consent of the ASCP Funds. Notwithstanding the foregoing, this Commitment Letter may be
shown to (i) Buyer’s other financing sources and (ii) the Company and its advisors;
provided, that in each case, that such parties are directed to treat this
Commitment Letter as confidential.
If you have any questions regarding this letter or the attachments hereto, please contact
Xxxxxxx XxXxxxx at American Securities Capital Partners, L.L.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, telephone number (000) 000-0000, facsimile number (000) 000-0000.
[signature appears on next page]
Very truly yours, | ||||||||||||||||
AMERICAN SECURITIES PARTNERS V, L.P. | ||||||||||||||||
By: | American Securities Associates V, LLC its general partner |
|||||||||||||||
By: | /s/ Xxxxxxx X. Xxxxx | |||||||||||||||
Name: | Xxxxxxx X. Xxxxx | |||||||||||||||
Title: | Managing Member | |||||||||||||||
AMERICAN SECURITIES PARTNERS V(B), L.P. | ||||||||||||||||
By: | American Securities Associates V, LLC, its general partner |
|||||||||||||||
By: | /s/ Xxxxxxx X. Xxxxx | |||||||||||||||
Name: | Xxxxxxx X. Xxxxx | |||||||||||||||
Title: | Managing Member | |||||||||||||||
AMERICAN SECURITIES PARTNERS V(C), L.P. | ||||||||||||||||
By: | American Securities Associates V, LLC, its general partner |
|||||||||||||||
By: | /s/ Xxxxxxx X. Xxxxx | |||||||||||||||
Name: | Xxxxxxx X. Xxxxx | |||||||||||||||
Title: | Managing Member | |||||||||||||||
Accepted and Agreed, this 28th day of September, 2009 |
||||||||||||||||
ASP GT Holding Corp. | ||||||||||||||||
By: | /s/ Xxxxxxx X. XxXxxxx | |||||||||||||||
Name: | Xxxxxxx X. XxXxxxx | |||||||||||||||
Title | President | |||||||||||||||
ASP GT Acquisition Corp. | ||||||||||||||||
By: | /s/ Xxxxxxx X. XxXxxxx | |||||||||||||||
Name: | Xxxxxxx X. XxXxxxx | |||||||||||||||
Title: | President |
[SIGNATURE
PAGE TO EQUITY COMMITMENT LETTER]
SCHEDULE I
Equity Commitment Amount | ||||||
(based on equity commitment | Portion of Parent | |||||
Fund | % | of $299.7 million*) | Termination Fee | |||
American Securities Partners V, L.P. |
97.2237 | $291.38 million | $11,666,844 | |||
American Securities Partners V(B), L.P. |
1.2562 | $3.76 million | $150,744 | |||
American Securities Partners V(C), L.P. |
1.5201 | $4.56 million | $182,412 |
* Pursuant to the Merger Agreement and the Debt Financing Commitments, the equity commitment of the
ASP Funds collectively (and each Equity Commitment Amount pro-rata) will be reduced by (x) the
amount of cash and cash equivalents on hand at the Company and its Subsidiaries immediately prior
to the Acceptance Date less (y) any cash or cash equivalents required to remain at the
Company or its Subsidiaries pursuant to the Debt Financing Commitments.