Exhibit 4
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of June 24, 2003,
between ▇▇▇▇▇▇ Associates Family, L.P., a Delaware limited partnership
("▇▇▇▇▇▇"), and PMM GK Investment LLC, a Delaware limited liability company
("PMM" and together with ▇▇▇▇▇▇, the "Sellers"), and Quetico, L.L.C., an
Illinois Limited Liability Company (the "Purchaser").
Recitals
▇. ▇▇▇▇▇▇ owns 1,400,163 shares of Class A Common Stock, par value $0.01
per share ("Class A Shares"), and 599,837 shares of Class B Common Stock, par
value $0.01 per share, which shares are convertible on a one-to-one basis into
Class A Shares ("Class B Shares") of GenTek Inc., a Delaware corporation
("Company") operating pursuant to Sections 1107 and 1108 of Title 11 and
applicable portions of Titles 18 and 28 of the United States Code.
B. PMM owns 2,061,046 Class A Shares and 791,686 Class B Shares of the
Company.
▇. ▇▇▇▇▇▇ wishes to sell the 1,400,163 Class A Shares and convert and sell
to Purchaser the 599,837 Class B Shares (said 2,000,000 shares, the "▇▇▇▇▇▇
Shares") and PMM wishes to sell the 2,061,046 Class A shares and convert and
sell to Purchaser the 791,686 Class B shares (said 2,852,732 shares, the "PMM
Shares," and collectively, with the ▇▇▇▇▇▇ Shares, the "Shares").
D. The Sellers wish to sell the Shares to the Purchaser and the Purchaser
is willing to purchase the Shares.
NOW, THEREFORE, the parties hereto agree as follows:
1. Sale and Purchase.
1.1 Sale and Purchase of the Shares. Subject to the terms and conditions
of this Agreement, at the Closing (as defined in Section 1.2), (i) ▇▇▇▇▇▇ will
sell, and the Purchaser will purchase, the ▇▇▇▇▇▇ Shares for an aggregate
purchase price of $20,000 (the "▇▇▇▇▇▇ Purchase Price"), and (ii) PMM will sell,
and the Purchaser will purchase, the PMM Shares for an aggregate purchase price
of $28,527.32 (the "PMM Purchase Price"), in each case payable as set forth
below in Section 1.2.
1.2 Closing. The closing of the sale and purchase of the Shares (the
"Closing") will take place at the offices of ▇▇▇▇▇▇ Associates Inc., a Delaware
corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 A.M., local
time, on June 24, 2003, subject to the prior satisfaction or waiver of the
conditions set
forth in Section 4, or at such other date and time as the parties shall have
agreed to in writing. The date on which the Closing shall occur is hereinafter
referred to as the "Closing Date." At the Closing:
(a) ▇▇▇▇▇▇ and PMM will deliver to the Purchaser stock certificates
representing the ▇▇▇▇▇▇ Shares and the PMM Shares, respectively, endorsed
or accompanied by stock powers in favor of the Purchaser, and accompanied
by all requisite stock transfer stamps, and assignment in form reasonably
satisfactory to Purchaser, of the Personal Rights; and
(b) the Purchaser will deliver the ▇▇▇▇▇▇ Purchase Price and the PMM
Purchase Price to ▇▇▇▇▇▇ and PMM respectively by wire transfers of
immediately available funds to such bank accounts as may be designated by
▇▇▇▇▇▇ and PMM no later than one day prior to the Closing Date.
2. Representations and Warranties of the Seller. Each of the Sellers
severally represents and warrants to the Purchaser in respect of itself only and
without making any representation or warranty about the other Seller as follows:
2.1 Corporate Status and Authority. ▇▇▇▇▇▇ is a limited partnership duly
formed, validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority to own the ▇▇▇▇▇▇ Shares and
to execute and deliver this Agreement and perform its obligations hereunder. The
person executing and delivering this Agreement on behalf of ▇▇▇▇▇▇ is a duly
appointed and acting general partner of ▇▇▇▇▇▇, with full power and authority to
execute and deliver this Agreement on behalf of ▇▇▇▇▇▇. PMM is a limited
liability company duly formed, validly existing and in good standing under the
laws of the State of Delaware and has the corporate power and authority to own
the PMM Shares and to execute and deliver this Agreement and perform its
obligations hereunder. The person executing and delivering this Agreement on
behalf of PMM is the duly appointed and acting manager of PMM, with full power
and authority to execute and deliver this Agreement on behalf of PMM. This
Agreement has been duly executed and delivered by each Seller and constitutes
the legal, valid and binding obligation of such Seller, enforceable against it
in accordance with its terms.
2.2 No Conflicts; Consents and Approvals, etc. (a) The execution and
delivery of this Agreement by each Seller, the performance of its obligations
hereunder and the consummation of the transactions contemplated hereby will not
result in (i) any conflict with the organizational documents of such Seller,
(ii) any breach or violation of or default under any law, statute, regulation,
judgment, order, decree, license, permit or other governmental authorization or
any mortgage, lease, agreement, deed of trust, indenture or any other instrument
to which such Seller is a party or by which any of its properties or assets is
bound, or (iii) the creation or imposition of any liens, security
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interests, adverse claims, charges or encumbrances ("Liens") other than Liens
created by or resulting from the actions of the Purchaser or any of its
affiliates.
(b) No consent, approval or authorization of or filing with any third
party or any governmental authority is required on the part of either Seller in
connection with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby.
2.3 The Shares. The ▇▇▇▇▇▇ Shares and the PMM Shares are owned,
beneficially and of record, by ▇▇▇▇▇▇ and PMM respectively, free and clear of
all Liens. The ▇▇▇▇▇▇ Shares and the PMM Shares have been duly authorized and
validly issued and are fully paid and non-assessable. ▇▇▇▇▇▇ has the sole right
to vote or to dispose of the ▇▇▇▇▇▇ Shares and none of the ▇▇▇▇▇▇ Shares is
subject to any agreement, arrangement or restriction with respect to the voting
or disposition of the ▇▇▇▇▇▇ Shares, except as contemplated by this Agreement or
by law. Except for this Agreement, (i) there are no agreements or arrangements
of any kind, contingent or otherwise, obligating ▇▇▇▇▇▇ to sell, transfer,
assign, grant a participation interest in, option, pledge, hypothecate or
otherwise dispose or transfer any of the ▇▇▇▇▇▇ Shares, and (ii) no person has
any contractual right or obligation to purchase or otherwise acquire any of the
▇▇▇▇▇▇ Shares. PMM has the sole right to vote or to dispose of the PMM Shares
and none of the PMM Shares is subject to any agreement, arrangement or
restriction with respect to the voting or disposition of the PMM Shares, except
as contemplated by this Agreement or by law. Except for this Agreement, (i)
there are no agreements or arrangements of any kind, contingent or otherwise,
obligating PMM to sell, transfer, assign, grant a participation interest in,
option, pledge, hypothecate or otherwise dispose or transfer any of the PMM
Shares, and (ii) no person has any contractual right or obligation to purchase
or otherwise acquire any of the PMM Shares.
2.4 Litigation. There are no judicial or administrative actions,
proceedings or investigations pending or, to the knowledge of the Sellers,
threatened, which question the validity of this Agreement or any action taken or
to be taken by the Seller in connection herewith.
2.5 Shareholder Liability. To the best of Sellers' knowledge there are no
facts or circumstances that exist on the date hereof with respect to the Shares
or Sellers' respective ownership of the Shares that could be expected to give
rise to a claim or claims against Purchaser as a shareholder of the Company from
and after the Closing.
3. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to each Seller as follows:
3.1 Corporate Status and Authority. The Purchaser is a limited liability
company duly formed, validly existing and in good standing under the laws of the
State
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of Illinois and has the power and authority to execute and deliver this
Agreement and perform its obligations hereunder. The execution, delivery and
performance of this Agreement have been duly authorized by the Purchaser's
managing member, which constitutes all necessary corporate action on the part of
the Purchaser for such authorization. This Agreement has been duly executed and
delivered by the Purchaser and constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms.
3.2 No Conflicts; Consents and Approvals, etc. (a) The execution and
delivery of this Agreement by the Purchaser, the performance of its obligations
hereunder, and the consummation of the transactions contemplated hereby will not
result in (i) any conflict with the operating agreement of the Purchaser, (ii)
any breach or violation of or default under any law, statute, regulation,
judgment, order, decree, license, permit or other governmental authorization or
any mortgage, lease, agreement, deed of trust, indenture or any other instrument
to which the Purchaser is a party or by which the Purchaser or any of its
properties or assets are bound, or (iii) the creation or imposition of any Lien.
3.3 No consent, approval or authorization of or filing with any third
party or governmental authority is required on the part of the Purchaser in
connection with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby.
3.4 Litigation. There are no judicial or administrative actions,
proceedings or investigations pending or, to the knowledge of the Purchaser,
threatened, which question the validity of this Agreement or any action taken or
to be taken by the Purchaser in connection herewith.
3.5 Investment Intention. The Purchaser is an "accredited investor" as
defined in Rule 501(a) under the Securities Act of 1933, as amended (the
"Securities Act"), and the Purchaser is acquiring the Shares solely for its
account for investment and not with a view to or for sale in connection with any
distribution thereof in any transaction or series of transactions that would be
in violation of the securities laws of the United States or any state thereof.
3.6 Securities Law Matters. The Purchaser has received advice from the
Sellers with respect to the following matters that affect the liquidity of the
shares: (a) the Shares will not be registered under the Securities Act or
qualified under any state securities or "blue sky" laws, (b) it is not
anticipated that there will be any public market for the Shares, and (c) the
Shares must be held indefinitely and the holder of such Shares must continue to
bear the economic risk of such investment in such interest unless such interest
is subsequently registered under the Securities Act and such state laws or an
exemption from registration is available.
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3.7 Ability to Bear Risk. The Purchaser's financial situations is such
that it can afford to bear the economic risk of holding the Shares for an
indefinite period and the Purchaser can afford to suffer the complete loss of
its investment in the Shares.
4. Conditions Precedent.
4.1.1 General. The respective obligations set forth herein of the Sellers
and the Purchaser to consummate the sale and purchase of the Shares at the
Closing shall be subject to there not being in effect any injunction or other
order issued by a court of competent jurisdiction restraining or prohibiting the
consummation of the transactions contemplated by this Agreement.
4.2 Conditions to Obligations of the Sellers. The obligations set forth
herein of the Sellers to consummate the sale and purchase of the Shares at the
Closing shall be subject to the representations and warranties in Section 2
being true and correct when made and at and as of the Closing with the same
effect as though made at and as of such time, with such exceptions as are not in
the aggregate material.
4.3 Conditions to Obligations of the Purchaser. The obligations set forth
herein of the Purchaser to consummate the sale and purchase of the Shares at the
Closing shall be subject to the representations and warranties in Section 2
being true and correct when made and at and as of the Closing with the same
effect as though made at and as of such time, with such exceptions as are not in
the aggregate material (other than with respect to those representations and
warranties in Section 2.3, which shall be true and correct in all respects).
5. General Provisions.
5.1 Publicity. No press release or public announcement related to this
Agreement, or the transactions contemplated hereby, shall be issued or made
without the joint approval of the Sellers and the Purchaser, unless required by
law, in which case the Sellers and the Purchaser shall have the right to review
such press release or announcement prior to publication. Notwithstanding
anything in the foregoing to the contrary, the parties acknowledge that they
will be required to file schedules or reports pursuant to the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder, and the filing of such schedules and reports shall not be deemed
prohibited by this Agreement.
5.2 Modification; Waiver. This Agreement may be modified only by a written
instrument executed by the parties hereto. Any of the terms and conditions of
this Agreement may be waived in writing at any time on or prior to the Closing
Date by the party entitled to the benefits thereof.
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5.3 Entire Agreement. This Agreement, including the schedules hereto
(which are hereby incorporated by reference and made a part hereof) is the
entire agreement of the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, oral or written,
express or implied, between the parties hereto and their respective affiliates,
representatives and agents in respect of the subject matter hereof.
5.4 Certain Limitations. It is the explicit intent and understanding of
each of the parties hereto that neither party nor any of its affiliates,
representatives or agents is making any representation or warranty whatsoever,
oral or written, express or implied, other than those set forth in Section 2 and
3 and neither party is relying on any statement, representation or warranty,
oral or written, express or implied, made by the other party or such other
party's affiliates, representatives or agents, except for the representations
and warranties set forth in such sections. The parties agree that this is an
arm's length transaction in which the parties' undertakings and obligations are
limited to the performance of their obligations under this Agreement. The
Purchaser acknowledges that it is a sophisticated investor, that it has only a
contractual relationship with the Seller, based solely on the terms of this
Agreement, and that there is no special relationship of trust or reliance
between the Purchaser and the Sellers.
5.5 Termination. (a) This Agreement may be terminated: (i) at any time
prior to the Closing Date by mutual consent of the Purchaser and the Sellers, or
(ii) by the Purchaser or the Sellers, if the Closing shall not have taken place
on or before June 30, 2003 or such later date as the parties may have agreed to
in writing. If this Agreement is terminated as provided in this Section 5.5,
this Agreement shall become null and void and be of no further force or effect,
except that nothing in this Section 5.5 shall be deemed to release either party
from any liability for any breach by such party of the terms and provisions of
this Agreement or to impair the right of either party to compel specific
performance by the other party of its obligations under this Agreement.
5.6 Expenses. Except as expressly provided herein, whether or not the
transactions contemplated herein shall be consummated, each party shall pay its
own expenses incident to the preparation and performance of this Agreement.
5.7 Further Actions. Each party shall execute and deliver such
certificates and other documents and take such other actions as may reasonably
be requested by the other party in order to consummate or implement the
transactions contemplated hereby.
5.8 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given or
made as follows: (a) if sent by registered or certified mail in the United
States return receipt requested, upon receipt; (b) if sent by reputable
overnight air courier (such as DHL or Federal Express), two business days after
mailing; (c) if sent by facsimile transmission,
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with a copy mailed on the same day in the manner provided in (a) or (b) above,
when transmitted and receipt is confirmed by telephone; or (d) if otherwise
actually personally delivered, when delivered and shall be delivered as follows:
if to ▇▇▇▇▇▇:
c/▇ ▇▇▇▇▇▇ Associates Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
if to PMM:
c/▇ ▇▇▇▇▇▇ Associates Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
if to the Purchaser:
c/o Equity Group Investments, L.L.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
or to such other address or to such other person as either party hereto shall
have last designated by notice to the other party.
5.9 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
provided that any assignment, by operation of law or otherwise, by either party
hereto shall require the prior written consent of the other party and any
purported assignment or other transfer without such consent shall be void and
unenforceable.
5.10 No Third Party Beneficiaries. Nothing in this Agreement shall confer
any rights upon any person or entity which is not a party or a successor or
permitted assignee of a party to this Agreement.
5.11 Counterparts. This Agreement may be executed in counterparts, both of
which shall constitute one and the same instrument.
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5.12 Section Headings. The section headings in this Agreement are for
convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provision hereof.
5.13 Governing Law. This Agreement shall be construed, performed and
enforced in accordance with the laws of the State of Delaware, without regard to
the conflicts of law principles of such state.
5.14 Consent to Jurisdiction, etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of any Delaware State court or Federal court of the
United States of America sitting in Delaware, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby or for recognition or
enforcement of any judgment relating thereto, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such Delaware State
court or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(b) Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby in any Delaware State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 5.8. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
5.15 To the fullest extent permitted by law, each Seller severally and not
jointly agrees to indemnify, defend and hold harmless the Purchaser and the
Purchaser's directors, officers, employees, agents, advisors and affiliates
(each, an "Indemnified Party") of, from and against any and all losses, claims,
damages, liabilities, expenses (including, without limitation, reasonable
attorneys' and expert witness fees and expenses), judgments, fines, settlements
and other amounts incurred by or asserted against any Indemnified Party, in
connection with or resulting from the breach of any representation, warranty or
covenant hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
▇▇▇▇▇▇ ASSOCIATES FAMILY, L.P.,
Acting by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, its
General Partner
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
PMM GK INVESTMENT LLC
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager
QUETICO, L.L.C.
An Illinois Limited Liability Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President
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