-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, V4C5fTsAfRQf4xjvFvr+fR3P4JitsECi1A9zFSwDu4z1RWYao+/BAHUkwF2l+ZVZ t6sov2Y+fU5jNMwgidj3JQ== 0000950123-03-013539.txt : 20040115 0000950123-03-013539.hdr.sgml : 20040115 20031208115433 ACCESSION NUMBER: 0000950123-03-013539 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000309 DATE AS OF CHANGE: 20040115 GROUP MEMBERS: PAUL M MEISTER GROUP MEMBERS: PMM GK INVESTMENT LLC GROUP MEMBERS: SANDRA G. MONTRONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GENTEK INC CENTRAL INDEX KEY: 0001077552 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLE PARTS & ACCESSORIES [3714] IRS NUMBER: 020505547 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56261 FILM NUMBER: 031041896 BUSINESS ADDRESS: STREET 1: LIBERTY LANE CITY: HAMPTON STATE: NH ZIP: 03842 BUSINESS PHONE: 6039292606 MAIL ADDRESS: STREET 1: LIBERTY LANE CITY: HAMPTON STATE: NH ZIP: 03842 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MONTRONE PAUL M CENTRAL INDEX KEY: 0001032940 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: NH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: LIBERTY LANE CITY: HAMPTON STATE: NH ZIP: 03842 BUSINESS PHONE: 6039292607 MAIL ADDRESS: STREET 1: LIBERTY LANE CITY: HAMPTON STATE: NH ZIP: 03842 SC 13D/A 1 y92331a1sc13dza.txt AMENDMENT #1 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1)* GenTek Inc. ------------------------------------------------- (Name of Issuer) Common Stock, par value $.01 per share ------------------------------------------------- (Title of Class of Securities) 37245X 10 4 ------------------------------------------------- (CUSIP Number) Paul M. Montrone c/o GenTek Inc. Liberty Lane Hampton, New Hampshire 03842 (603) 929-2264 ------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 25, 2000 ------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of 'SS'240.13d-1(3), 240.13d-1(f) or 240.13d-1(g), check the following box [ ]. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purposes of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. SCHEDULE 13D CUSIP No. 37245X 10 4 Page 2 of 12 Pages (1) Names of Reporting Persons Paul M. Montrone S.S. or I.R.S. Identification Nos. of Above Persons - -------------------------------------------------------------------------------- (2) Check the Appropriate Box (a) [ ] if a Member of a Group (b) [ ] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds PF, OO - -------------------------------------------------------------------------------- (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization U.S.A. - -------------------------------------------------------------------------------- Number of Shares (7) Sole Voting Power 5,434,407 Beneficially Owned ----------------------------------------------------- by Each Reporting (8) Shared Voting Power 5,136,217 Person With ----------------------------------------------------- (9) Sole Dispositive Power 5,434,407 ----------------------------------------------------- (10) Shared Dispositive Power 5,136,217 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 12,638,752 - -------------------------------------------------------------------------------- (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row 11 50.6% (See Item 5(b)) - -------------------------------------------------------------------------------- (14) Type of Reporting Person IN SCHEDULE 13D CUSIP No. 37245X 10 4 Page 3 of 12 Pages (1) Names of Reporting Persons PMM GK Investment LLC S.S. or I.R.S. Identification N/A Nos. of Above Persons - -------------------------------------------------------------------------------- (2) Check the Appropriate Box (a) [ ] if a Member of a Group (b) [ ] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds OO - -------------------------------------------------------------------------------- (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization DE, U.S.A. - -------------------------------------------------------------------------------- Number of Shares (7) Sole Voting Power 2,852,731 Beneficially Owned ----------------------------------------------------- by Each Reporting (8) Shared Voting Power 0 Person With ----------------------------------------------------- (9) Sole Dispositive Power 2,852,731 ----------------------------------------------------- (10) Shared Dispositive Power 0 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 2,852,731 - -------------------------------------------------------------------------------- (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row 11 11.4% (See Item 5(b)) - -------------------------------------------------------------------------------- (14) Type of Reporting Person OO SCHEDULE 13D CUSIP No. 37245X 10 4 Page 4 of 12 Pages (1) Names of Reporting Persons Sandra G. Montrone S.S. or I.R.S. Identification Nos. of Above Persons - -------------------------------------------------------------------------------- (2) Check the Appropriate Box (a) [ ] if a Member of a Group (b) [ ] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds Not Applicable (see Item 4) - -------------------------------------------------------------------------------- (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization U.S.A. - -------------------------------------------------------------------------------- Number of Shares (7) Sole Voting Power 36,000 Beneficially Owned ----------------------------------------------------- by Each Reporting (8) Shared Voting Power 7,204,345 Person With ----------------------------------------------------- (9) Sole Dispositive Power 36,000 ----------------------------------------------------- (10) Shared Dispositive Power 7,204,345 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 7,240,345 - -------------------------------------------------------------------------------- (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row 11 29.0% (See Item 5(b)) - -------------------------------------------------------------------------------- (14) Type of Reporting Person IN SCHEDULE 13D CUSIP No. 37245X 10 4 Page 5 of 12 Pages (1) Names of Reporting Persons Paul M. Meister S.S. or I.R.S. Identification Nos. of Above Persons - -------------------------------------------------------------------------------- (2) Check the Appropriate Box (a) [ ] if a Member of a Group (b) [ ] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds Not Applicable (see Item 4) - -------------------------------------------------------------------------------- (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization U.S.A. - -------------------------------------------------------------------------------- Number of Shares (7) Sole Voting Power 10,000 Beneficially Owned ----------------------------------------------------- by Each Reporting (8) Shared Voting Power 2,068,128 Person With ----------------------------------------------------- (9) Sole Dispositive Power 10,000 ----------------------------------------------------- (10) Shared Dispositive Power 2,068,128 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 10,000 - -------------------------------------------------------------------------------- (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row 11 * (See Item 5(b)) - -------------------------------------------------------------------------------- (14) Type of Reporting Person IN SCHEDULE 13D CUSIP No. 37245X 10 4 Page 6 of 12 Pages ITEM 1. SECURITY AND ISSUER The Issuer is GenTek Inc., a Delaware corporation (the "Issuer"). The address of Issuer's principal executive offices is Liberty Lane, Hampton, New Hampshire 03842. This report covers the Issuer's Common Stock, par value $.01 per share (the "Common Stock"). The Issuer has also issued Class B Common Stock par value $.01 per share (the "Class B Common Stock"). Each share of Class B Common Stock is convertible at the option of holder into one share of Common Stock and is automatically converted into one share of Common Stock upon transfer to a person who is not a Permitted Transferee, as that term is defined in the Issuer's Certificate of Incorporation. Based upon this conversion feature of Class B Common Stock, the Reporting Persons are, pursuant to Rule 13d-3(d) (1) (i) (B) of the Act, deemed for purposes of this filing to be the beneficial owners of such shares of Common Stock as would be issued upon conversion. The Common Stock and Class B Common Stock are substantially identical, except for disparity in voting power, limitations on transfers of Class B Common Stock and the conversion feature of the Class B Common Stock. The holders of Common Stock and Class B Common Stock vote as a single class on all matters submitted to a vote of stockholders except as otherwise provided by law. ITEM 2. (a) The names of the Reporting Persons are (i) Paul M. Montrone, an individual, (ii) PMM GK Investment LLC, a Delaware limited liability company, (iii) Sandra G. Montrone, and (iv) Paul M. Meister. (b) The business address of Paul M. Montrone, Sandra G. Montrone and Paul M. Meister is c/o GenTek Inc., Liberty Lane, Hampton, New Hampshire 03842. The principal place of business of PMM GK Investment LLC is c/o Wilmington Trust Company, 1100 N. Market Street, Wilmington, Delaware 19890. (c) Paul M. Montrone is the Chairman of the Board and Chief Executive Officer of Fisher Scientific International Inc., and Chairman of the Board of the Issuer and The General Chemical Group Inc. PMM GK Investment LLC is wholly owned and controlled by Paul M. Montrone; he is the sole member and manager of PMM GK Investment LLC. Sandra G. Montrone is the wife of Paul M. Montrone. Paul M. Meister is the Vice Chairman of the Board and the Executive Vice President SCHEDULE 13D CUSIP No. 37245X 10 4 Page 7 of 12 Pages and Chief Financial Officer of Fisher Scientific International Inc. Paul M. Meister is also the Vice Chairman of the Board of the Issuer and the General Chemical Group Inc. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. On February 25, 2000, PMM GK Investment LLC purchased 2,061,046 shares of the Common Stock and 791,685 shares of the Class B Common Stock of the Issuer by subscribing to such shares in a rights offering by the Issuer (the "Rights Offering"). In the Rights Offering, the Issuer granted to holders of its Common Stock and Class B Common Stock, at no cost, 0.20 rights for each share of Common Stock and Class B Common Stock they owned as of the close of business on January 24, 2000. Each whole right entitled the holder to purchase one share of Common Stock or Class B Common Stock, as applicable, for a subscription price of $9.43 per share. In addition, pursuant to the terms of the Rights Offering, holders who exercised their rights in full also had the opportunity to subscribe for additional shares that were not purchased by other eligible rights holders (the "over-subscription privilege"). PMM GK Investment LLC purchased shares in the Rights Offering by exercising subscription rights issued in respect of the shares of Common Stock and Class B Common Stock owned by Paul M. Montrone and the Montrone family trusts. (See Item 5(a) for more information regarding the Montrone family trusts.) As holders of a total of 5,823,000 shares of Common Stock and 3,958,421 shares of Class B Common Stock, Mr. Montrone and the Montrone family trusts received rights to subscribe for 1,164,604 shares of Common Stock and 791,685 shares of Class B Common Stock. Upon such receipt, 1,951,689 of these rights were transferred to PMM GK Investment LLC, which exercised all such subscription rights. In addition, PMM GK Investment LLC purchased an additional 901,042 shares of Common Stock through the exercise of its over- subscription privilege. PMM GK Investment LLC purchased these shares for a total subscription price of $26,901,253. PMM GK Investment LLC funded this purchase with $2 million provided to it by Paul M. Montrone and with the proceeds of the issuance of $25 million of debt securities. See Item 6 for additional information. Sandra G. Montrone purchased 6,000 shares of Common Stock in the Rights Offering with personal funds. SCHEDULE 13D CUSIP No. 37245X 10 4 Page 8 of 12 Pages This Item 3 is not applicable with respect to Paul M. Meister. ITEM 4. PURPOSE OF TRANSACTION. Paul M. Montrone, the Chairman of the Board of the Issuer, and the Montrone family trusts, owned approximately 47.1% of the outstanding shares of the Issuer prior to the Rights Offering, which shares represented 80.1% of the aggregate voting power of the Issuer. PMM GK Investment LLC purchased 2,061,046 shares of Common Stock and 791,685 shares of Class B Common Stock through the exercise of subscription rights granted to Paul M. Montrone and the Montrone family trusts in the Rights Offering. PMM GK Investment LLC acquired these shares because Paul M. Montrone considered such purchases at the subscription price of $9.43 per share to represent a beneficial investment opportunity. Sandra G. Montrone purchased 6,000 shares of Common Stock in the Rights Offering for the same reason that PMM GK Investment LLC purchased shares of the Issuer in the Rights Offering. Paul M. Meister has not purchased any shares of the Issuer in the Rights Offering or otherwise. As described in Item 5(a), Sandra G. Montrone is the trustee of certain Montrone family trusts and Paul M. Meister is a trustee of one such trust. Due to the recent formation of a Montrone family trust and a Montrone family limited partnership, the allocation of certain shares of the Issuer by Paul M. Montrone to the Montrone family trusts, and a re-allocation of shares of the Issuer among the Montrone family trusts, the number of shares of the Issuer owned by such trusts has changed since the filing of the Schedule 13D (file no. 005-56261) by the Reporting Persons (other than PMM GK Investment LLC) on May 10, 1999. None of the Reporting Persons, in its capacity as shareholder of the Issuer, has any plan or proposal with respect to the matters set forth in paragraphs (a) through (j) of Item 4 of Schedule 13D. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) Paul M. Montrone beneficially owns 7,888,646 shares of Common Stock and 4,750,106 shares of Class B Common Stock. PPM GK Investment LLC beneficially owns 2,061,046 shares of Common Stock and 791,685 shares of Class B Common Stock. Sandra G. Montrone beneficially owns 4,939,422 shares of Common Stock and 2,300,923 shares of Class B Common Stock. Paul M. Meister is a co-trustee of the 1996 GRAT (as defined below), which beneficially owns SCHEDULE 13D CUSIP No. 37245X 10 4 Page 9 of 12 Pages 1,214,881 shares of Common Stock and 853,247 shares of Class B Common Stock. By virtue of his position as a co-trustee of the 1996 GRAT, Mr. Meister may be deemed a beneficial owner of such shares; Mr. Meister, however, disclaims beneficial ownership of such shares. In addition, Mr. Meister owns 10,000 shares of Common Stock. Such shares are owned as follows: (i) 920,578 shares of Common Stock are held directly by Paul M. Montrone; (ii) 1,657,498 shares of Class B Common Stock are held directly by Paul M. Montrone; (iii) 36,000 shares of Common Stock are held directly by Sandra G. Montrone; (iv) 3,600 shares of Common Stock are held by a trust (the "Trust") of which Paul M. Montrone is the sole trustee and a beneficiary; (v) 1,214,881 shares of Common Stock and 853,247 shares of Class B Common Stock are held by a grantor retained annuity trust formed in 1996 (the "1996 GRAT"), of which Paul M. Montrone is the settlor and annuity beneficiary and Sandra G. Montrone and Paul M. Meister are co-trustees with shared investment and voting discretion; (vi) 12,969 shares of Common Stock and 1,099,661 shares of Class B Common Stock are held by a grantor retained annuity trust formed in December 1998 (the "1998 GRAT"), of which Paul M. Montrone is the settlor and annuity beneficiary, and Sandra G. Montrone and Paul M. Montrone are co-trustees with shared investment and voting discretion, (vii) 1,188,717 shares of Common Stock and 834,870 shares of Class B Common Stock are held by a grantor retained annuity trust formed in March 1999 (the "1999 GRAT"), of which Paul M. Montrone is the settlor and annuity beneficiary and Sandra G. Montrone and Paul M. Montrone are co-trustees with shared investment and voting discretion; (viii) 1,400,163 shares of Common Stock and 599,837 shares of Class B Common Stock are held by Sewall Associates Family, L.P., a Delaware limited partnership of which Sandra G. Montrone and Paul M. Montrone are the sole general partners with shared investment and voting discretion and Paul M. Montrone and a grantor retained annuity trust formed in January 2000 (of which Paul M. Montrone is the settlor and annuity beneficiary and Sandra G. Montrone and Paul M. Montrone are co-trustees with shared investment and voting discretion) are the limited partners; (ix) 2,061,046 shares of Common Stock and 791,685 shares of Class B Common Stock are held by PMM GK Investment LLC; (x) 10,000 shares of Common Stock are held by Paul M. Meister; and (xi) 15,000 Restricted Units (which may be exchanged for shares of Common Stock on a one-for-one basis) are held directly by Paul M. Meister. An additional 120,000 shares of Common Stock are held by a charitable foundation, of which Paul M. Montrone is a director. By virtue of his position with the foundation, Paul M. Montrone may be deemed to be beneficial owner of the shares of Common Stock held by the SCHEDULE 13D CUSIP No. 37245X 10 4 Page 10 of 12 Pages foundation. Paul M. Montrone disclaims any beneficial ownership in the 120,000 shares of Common Stock held by the foundation. (b) Paul M. Montrone has sole voting and dispositive power with respect to the shares of Common Stock and Class B Common Stock held directly by him, the shares of Common Stock held by the Trust, and the shares of Common Stock and Class B Common Stock held by PMM GK Investment LLC. Paul M. Montrone and Mrs. Montrone share voting and dispositive power with one another, as co-trustee or general partners, with respect to the shares held by the 1998 GRAT, the 1999 GRAT and Sewall Associates Family, L.P. Sandra G. Montrone and Paul M. Meister share voting and dispositive power with one another, as co-trustees, with respect to the shares held by the 1996 Trust. PMM GK Investment LLC has sole voting and dispositive power with respect to the shares of Common Stock and Class B Common Stock held by it. Sandra G. Montrone has sole voting and dispositive power with respect to the shares of Common Stock held directly by her. Paul M. Meister has sole voting and dispositive power with respect to the shares of Common Stock held directly by him. Each share of Common Stock entitles the holder to one vote and each share of Class B Common Stock entitles the holder to ten votes at each annual or special meeting of stockholders, in the case of any written consent of stockholders, and for all other purposes, including the election of directors of the Issuer. The Common Stock and Class B Common Stock are substantially identical except for the disparity in voting power, and the holders of Common Stock and Class B Common Stock vote as a single class on all matters submitted to a vote of stockholders except as otherwise provided by law. Assuming no conversion of any of the outstanding shares of Class B Common Stock, the shares of stock and for which Paul M. Montrone has or shares voting power constitutes 81.8% of the aggregate voting power of the Issuer. Assuming no conversion of any of the outstanding shares of Class B Common Stock, the shares of stock for which PMM GK Investment LLC has sole voting power constitutes 14.7% of the aggregate voting power of the Issuer. SCHEDULE 13D CUSIP 37245X 10 4 Page 11 of 12 Pages (c) There were no transactions, other than the purchase of Common Stock and Class B Common Stock described herein, in the class of securities reported on that were effected during the past sixty days by the Reporting Persons. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. As described in Item 3, a portion of the subscription price for the shares of the Issuer purchased by PMM GK Investment LLC in the Rights Offering was financed through its issuance of $25 million aggregate principal amount of debt securities to Paul M. Meister and Toufic M. Aboukhater (the "Notes"). The Notes issued by PMM GK Investment LLC mature on January 31, 2005, may be prepaid at any time at the option of PMM GK Investment LLC, and pay interest at the rate of 2% per annum. The repayment amount of the Notes will be based on the return to PMM GK Investment LLC of its investment in the Common Stock of Issuer and, as a result, may be greater than the principal amount of the Notes. The Notes are not secured by the Common Stock or Class B Common Stock held by, or any other assets of, PMM GK Investment LLC. Pursuant to a registration rights agreement with the Issuer, Paul M. Montrone and his affiliates (including the GRATs referred to in item 5) may request, at any time until April 1, 2004, the registration of their shares of Common Stock (including shares of Common Stock received upon conversion of any Class B Common Stock) for sale under the Securities Act of 1933. The Issuer will be required to accept up to three requests for registration and, in addition, to include the shares of Paul M. Montrone and his affiliates (including the GRATs referred to in item 5 and PPM GK Investment LLC) in a proposed registration of shares of Common Stock under the Securities Act of 1933 in connection with the sale of shares of Common Stock by the Issuer or any other stockholder of the Issuer. The Issuer will be responsible to pay the expenses of the registration of shares of Mr. Montrone and his affiliates (including the GRATs referred to in item 5 and PPM GK Investment LLC) other than brokerage and underwriting commissions and taxes relating to the sale of the shares.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS. Exhibit 1. Joint Filing Agreement, dated March 9, 2000, among the Reporting Persons. Exhibit 2. Amended and Restated Limited Liability Company Agreement of PMM GK Investment LLC, dated as of December 20, 1999, entered into by Paul M. Montrone, as sole member.
SCHEDULE 13D CUSIP No. 37245X 10 4 Page 12 of 12 Pages Exhibit 3. Promissory Note Due 2005 of PMM GK Investment LLC. Exhibit 4. Registration Rights Agreement, dated as of April 14, 1999, between Paul M. Montrone and The General Chemical Group Inc., as assumed by the Issuer with respect to Common Stock. Incorporated by reference to Exhibit 10.09 of the Amendment No. 2 to Registration Statement on Form 10 of GenTek Inc. (File No. 000-14789).
SIGNATURE. After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: March 9, 2000 /s/ Paul M. Montrone -------------------------------------- Paul M. Montrone PMM GK INVESTMENT LLC /s/ Paul M. Montrone -------------------------------------- By: Paul M. Montrone, as Manager /s/ Sandra G. Montrone -------------------------------------- Sandra G. Montrone /s/ Paul M. Meister -------------------------------------- Paul M. Meister INDEX OF EXHIBITS 1. Joint Filing Agreement, dated March 9, 2000, among the Reporting Persons. 2. Amended and Restated Limited Liability Company Agreement of PMM GK Investment LLC, dated as of December 20, 1999, entered into by Paul M. Montrone, as sole member. 3. Promissory Note Due 2005 of PMM GK Investment LLC. 4. Registration Rights Agreement, dated as of April 14, 1999, between Paul M. Montrone and The General Chemical Group Inc., as assumed by the Issuer with respect to Common Stock. Incorporated by reference to Exhibit 10.09 of the Amendment No. 2 to Registration Statement on Form 10 of GenTek Inc. (file no. 000-14789). STATEMENT OF DIFFERENCES The section symbol shall be expressed as...................................'SS' EX-99.1 3 y92331a1exv99w1.txt JOINT FILING AGREEMENT Exhibit 1 JOINT FILING AGREEMENT Pursuant to Rule 13d-1(k)(1)(iii) promulgated under the Securities Exchange Act of 1934, as amended, each of the undersigned agrees that the Statement on Schedule 13D, to which this exhibit is attached, is filed on its behalf. Dated: March 9, 2000 /s/ Paul M. Montrone -------------------------------------- Paul M. Montrone PMM GK INVESTMENT LLC /s/ Paul M. Montrone -------------------------------------- By: Paul M. Montrone, as Manager /s/ Sandra G. Montrone -------------------------------------- Sandra G. Montrone /s/ Paul M. Meister -------------------------------------- Paul M. Meister EX-99.2 4 y92331a1exv99w2.txt A/R LIMITED LIABILITY COMPANY AGREEMENT Exhibit 2 AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF PMM GK INVESTMENT LLC This Limited Liability Company Agreement, dated as of December 20, 1999 (this "Agreement"), of PMM GK Investment LLC, is entered into by Paul M. Montrone, as the sole member (the "Member"). The Member hereby forms a limited liability company pursuant to and in accordance with the Delaware Limited Liability Company Act (6 Del. C. ss. 18-101, et seq.), as amended from time to time (the "Act"), and hereby agrees as follows: 1. Name. The name of the limited liability company formed hereby is PMM GK Investment LLC (the "Company"). 2. Term. The term of the Company shall commence on the filing of the certificate of formation of the Company attached hereto as Annex A (the "Certificate of Formation") at the office of the Secretary of State of the State of Delaware and shall continue in perpetuity, unless the Company is dissolved or terminated pursuant to Section 9 of this Agreement. 3. Purpose. The Company is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act. 4. Registered Office. The address of the registered office of the Company in the State of Delaware is c/o Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The Company may also have offices at such other places within or without the State of Delaware as the Member may from time to time designate or the business of the Company may require. 5. Registered Agent. The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware are The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. 6. Principal Place of Business. The address of the principal place of business of the Company is c/o Wilmington Trust Company, 1100 N. Market Street, Wilmington, Delaware 19890. 7. Member. The name and the mailing address of the Member are Paul M. Montrone c/o Wilmington Trust Company, 1100 N. Market Street, Wilmington, Delaware 19890, n/o PMM GK Investment LLC, attention: Matthew G. Waschull. 8. Management of the Company. (a) The property, business and affairs of the Company shall be managed and conducted by the Manager of the Company, which Manager shall have the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by a "manager" (within the meaning of Section 102(p) of the Act) under the laws of the State of Delaware. The Manager of the Company may be appointed or removed by the Member at any time and from time to time, with or without cause. Initially, Paul M. Montrone shall be Manager of the Company. (b) The Company may only act and bind itself through the actions of the Manager, or through the actions of the agents and employees of the Company (as described in paragraph (c) of this Section 8) if and to the extent authorized by this Agreement or by the Manager in accordance with the provisions of this Agreement. (c) The Manager may (i) authorize by written action any person to enter into and perform any agreement on behalf of the Company, (ii) appoint a President, one or more Vice Presidents, a Secretary, one or more Assistant Secretaries and other officers of the Company, with the duties and powers described in paragraphs (e) and (f) of this Section 8, and (iii) appoint individuals, with such titles as he may select, as employees of the Company to act on behalf of the Company, with such power and authority as the Manager may delegate from time to time to any such person. Any such persons, officers and employees designated by the Manager to act on behalf of the Company may be appointed or removed by the Manager at any time and from time to time, with or without cause. (d) Any person or entity dealing with the Company, the Manager or any of the persons described in paragraph (c) above (collectively, the "Authorized Persons") may rely upon a certificate signed by the Manager (or the Secretary of the Company), as to the identity of the Member, the Manager, or an Authorized Person and as to the authority of the Manager or such Authorized Person to execute and deliver any instrument or document on behalf of the Company. 2 (e) The Secretary and each Assistant Secretary, if any, of the Company shall (i) keep the records of all meetings and written actions of the Manager and the Member, (ii) be the custodian of all contracts, deeds, documents and other indicia of title to properties owned by the Company and of its other corporate records, (iii) perform all general duties and have all powers incident to the office of the secretary of a corporation organized under the laws of Delaware, and (iv) perform such other duties and exercise such other powers as may from time to time be prescribed by the Manager. The duties of the Secretary may be performed by one or more employees or agents of the Company, to be appointed by the Manager. (f) The President and each Vice President, if any, of the Company shall perform such duties and exercise such powers as may be assigned to each of them from time to time by the Manager and shall have the authority to act on behalf of the Company, subject to the terms and conditions of this Agreement. 9. Dissolution. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of the following: (a) the written consent of the Member, (b) the resignation, expulsion, bankruptcy or dissolution of the Member or (c) the entry of a decree of judicial dissolution under Section 18-802 of the Act. 10. Initial Capital Contribution. The Member agrees to contribute $100, in cash, and no other property, to the Company. 11. Additional Contributions. The Member shall have the right, but not the obligation, to make additional capital contributions to the Company at the times and in the amounts determined by the Member. 12. Distributions. Distributions may be made to the Member at the times and in the aggregate amounts determined by the Manager. Notwithstanding anything to the contrary contained herein, the Company, and the Manager on behalf of the Company, shall not make a distribution to the Member on account of the interest of the Member in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law. 13. Transfers. The Member shall be permitted to transfer all or any portion of its interest in the Company. One or more additional members may be admitted to the Company with the consent of the Member, and this Agreement shall thereupon be amended, in a writing signed by the Member, as necessary or appropriate to reflect the fact that there is more than one Member. 3 14. Tax Matters. The Member shall not permit the Company to elect, and the Company shall not elect, to be treated as an association taxable as a corporation for U.S. federal, state or local income tax purposes under Treasury Regulations section 301.7701-3(a), or under any corresponding provision of state or local law. 15. Resignation. The Member may not resign from the Company. 16. Liability of the Member. Except as otherwise provided by the Act or herein, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and the Member shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a member of the Company. 17. Exculpation. (a) Neither the Manager, any Authorized Person, nor any of their respective affiliates, directors, advisory directors, members, officers or em ployees (each, a "Covered Person"), shall be liable to the Company or the Member for any loss, liability, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company. Whenever in this Agreement a Covered Person is permitted or required to make decisions in good faith, the Covered Person shall act under such standard and shall not be subject to any other or different standard imposed by this Agreement or any relevant provisions of law or in equi ty or otherwise. (b) A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any person or entity as to matters the Covered Person reasonably believes are within such person's or entity's professional or expert competence. 18. Fiduciary Duty. To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Com pany or to the Member, a Covered Person acting under this Agreement shall not be liable to the Company or to the Member for such Covered Person's good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Covered Person. 19. Indemnification. To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any costs and expenses (including attorneys' fees and disbursements), loss, liability, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted 4 by such Covered Person in good faith on behalf of the Company. To the fullest extent permitted by applicable law, expenses (including attorneys' fees and disbursements) incurred by a Covered Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding, subject to recapture by the Company following a later determination that such Covered Person was not entitled to be indemnified hereunder. 20. Amendment, Waiver, Etc. This Agreement may not be amended or supplemented, and no waiver of or consent to departures from the provisions hereof shall be effective, unless set forth in a writing signed by all the Members of the Company at the time thereof. 21. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES), ALL RIGHTS AND REMEDIES BEING GOVERNED BY SAID LAWS. 22. Authorized Person. Jason Elfenbein (or such other person as may from time to time be designated by the Manager for such purpose) is hereby designated as an authorized person, within the meaning of the Act, to execute, deliver and cause to be filed the certificate of formation of the Company (and any amendments and/or restatements thereof) and any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business. 23. Miscellaneous. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto. This Agreement shall be binding upon and inure to the benefit of all parties hereto and their successors and permitted assigns. Except as provided in Sections 17 and 19 herein with respect to the exculpation and indemnification of Covered Persons, nothing in this Agreement shall confer any rights upon any person or entity other than the parties hereto and their successors and permitted assigns. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted. 5 IN WITNESS WHEREOF, the undersigned, being the sole Member of the Company, intending to be legally bound hereby, has duly executed this Agreement as of the date first above written. PMM GK INVESTMENT LLC By:/s/ Paul M. Montrone ------------------------ Paul M. Montrone Member EX-99.3 5 y92331a1exv99w3.txt PROMISSORY NOTE Exhibit 3 THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID"). UPON WRITTEN REQUEST, THE MANAGER OF THE COMPANY, C/O WILMINGTON TRUST COMPANY, 1100 N. MARKET STREET, WILMINGTON, DELAWARE 19890, N/O PPM GK INVESTMENT LLC, ATTENTION MATTHEW G. WASCHULL, WILL PROMPTLY MAKE AVAILABLE TO THE HOLDER OF THIS NOTE THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE DATE, THE YIELD TO MATURITY, THE COMPARABLE YIELD AND THE PROJECTED PAYMENT SCHEDULE OF THIS NOTE. US $__________ PROMISSORY NOTE DUE 2005 PMM GK INVESTMENT LLC No. 1 Date: ____________ US $__________ New York, New York FOR VALUE RECEIVED, PMM GK Investment LLC, a Delaware limited liability company (together with its successors and assigns, the "Company"), hereby promises to pay to __________, a __________ company (the "Holder"), or registered assigns, the Maturity Amount (as defined below), upon presentation and surrender of this Note, on January 31, 2005 (the "Maturity Date"), and to pay interest (computed on the basis of a 360-day year of twelve 30-day months) on the Original Principal Amount (as defined below) from the date of original issuance or from the most recent Interest Payment Date (as defined below) to which interest has been paid at the rate of 2.0% per annum (the "Interest Rate"), quarterly in arrears (the "Quarterly Interest"), on March 31, June 30, September 30 and December 31 of each year (each, an "Interest Payment Date" and, collectively, the "Interest Payment Dates"), commencing March 31, 2000, until payment of the Maturity Amount or, if prepaid earlier, the Prepayment Amount (as defined below). Additional Interest (as defined below), if any, and interest on any overdue amounts shall be paid as specified herein. Changes in the Contingent Principal Amount (as defined below) shall not affect the amount of Quarterly Interest. All amounts payable hereunder (other than any Additional Interest paid in respect of non-cash property distributed or on with respect to the Reference Shares) (i) shall be paid in money of the United States of America that at the time is legal tender for the payment of public and private debts and (ii) shall be payable in cash or by certified check at the office or agency the Company maintains in Wilmington, Delaware (through Wilmington Trust Company, 1100 N. Market Street), or, at the Company's option, by wire transfer of immediately available funds at such bank or other financial institution in the United States of America as designated by Holder in writing to the Company. If any amount payable hereunder is payable on a date that is not a Business Day, payment shall be made on the next Business Day (and without any interest or other payment in respect of such delay); provided that if the next Business Day is in the next calendar year, payment of such interest shall be made on the preceding Business Day. A "Business Day" means any day other than a Saturday, a Sunday or a day on which banking institutions in the City of New York are authorized or obligated by law or regulation to close. 1. Interest The Company shall pay Quarterly Interest to the Holder in such amounts and at such times as specified in the first paragraph of this Note. The Company shall also pay and deliver to the Holder an amount ("Additional Interest") equal to any property, including cash, distributed on or with respect to the Reference Shares; provided that the record date for such distribution by the Reference Company falls during the period from the date of original issuance of this Note to the earlier of the Prepayment Date (if any) and the Maturity Date. Notwithstanding the foregoing, no amount shall be paid as Additional Interest with respect to distribution by a Reference Company of (i) rights to purchase or subscribe for additional Reference Shares by payment of consideration therefor, (ii) property that is also a Reference Share, in which case it shall become part of Reference Shares, and (iii) regular cash dividends on the Reference Shares not exceeding, in any year, US $ in the aggregate with respect to all Reference Shares at the time. Notwithstanding the foregoing, no payment of Quarterly Interest or Additional Interest shall be made to the extent that such payment, when taken together with all Quarterly Interest and Additional Interest already paid or then payable, would result in total payments to the Holder as of the date of such payment in excess of US $ . Additional Interest shall be paid and delivered to the Holder on the 20th Business Day after the date on which any property, including cash, distributed on or with respect to the Reference Shares is distributed to the holders of Reference Shares ("Reference Shares Distribution Date"). If in connection with the payment of any Additional Interest the Company shall otherwise be obligated to deliver fractional units of securities, the Company shall not be required to deliver such fractional units, and, in lieu thereof, the Company shall pay and deliver to the Holder cash representing the fair market value of such fractional units of such securities as determined in good faith by the Company. The Company shall pay interest at a rate of 2.0% per annum ("Overdue Interest") on (i) any overdue Maturity Amount or Prepayment Amount (ii) any overdue installments 2 of Quarterly Interest and (iii) any overdue payments of Additional Interest based on the fair market value of such Additional Interest, in each case, without regard to any applicable grace period. 2. Principal Amount The "Original Principal Amount" of this Note is US $ . The minimum amount payable upon Prepayment or maturity of this Note (the "Contingent Principal Amount") shall be initially equal to the Original Principal Amount. If any Additional Interest is paid, the Contingent Principal Amount shall be reduced on a quarterly basis to the extent necessary such that the yield on the Original Principal Amount to the date of computation (including all Quarterly Interest and the fair market value of all Additional Interests) does not exceed a yield of 2.0% per annum, compounded annually. In no event will the Contingent Principal Amount be less than zero. On the Maturity Date, the Holder shall be entitled to receive the Maturity Amount. The "Maturity Amount" means: (1) the higher of (A) the Contingent Principal Amount on the Maturity Date and (B) the Current Market Value of the Reference Shares on the Maturity Date, plus (2) an amount equal to the accrued and unpaid Quarterly Interest and Overdue Interest to the Maturity Date, plus (3) an amount equal to the sum of all unpaid Additional Interest, provided that (i) the Holder shall be entitled to receive such amount only to the extent that the applicable dividend or distribution is actually distributed by the Reference Company, and (ii) payment of such amount related to the property distributed by the Reference Company may be made up to 20 Business Days after the Reference Shares Distribution Date; provided that if such amount, plus all Quarterly Interest and the fair market value of all Additional Interest paid prior to the Maturity Date, exceeds US $ then the Maturity Amount shall be the amount equal to the excess of US $ over all Quarterly Interest and the fair market value of all Additional Interest paid prior to the Maturity Date. 3 3. Prepayments The Company may prepay this Note ("Optional Prepayment"), at any time, in whole but not in part, for the Prepayment Amount. "Prepayment Amount" means: (1) the higher of (A) the Contingent Principal Amount on the Prepayment Date and (B) the Current Market Value of the Reference Shares on the Prepayment Date, plus (2) an amount equal to the accrued and unpaid Quarterly Interest and Overdue Interest to the Prepayment Date, plus (3) a distribution equal to the sum of all unpaid Additional Interest, provided that (i) the Holder shall be entitled to receive such amount only to the extent that the applicable dividend or distribution is actually distributed by the Reference Company, and (ii) payment of such amount related to the property distributed by the Reference Company may be made up to 20 Business Days after the Reference Shares Distribution Date; provided that if such amount, plus all Quarterly Interest and the fair market value of all Additional Interest paid prior to the Prepayment Date, exceeds US $ , then the Prepayment Amount shall be the amount equal to the excess of US $ over all Quarterly Interest and the fair market value of all Additional Interest paid prior to the Prepayment Date. The Company shall be required to prepay the Note (a "Mandatory Prepayment" and together with Optional Prepayment, "Prepayment") for the Prepayment Amount upon Paul M. Montrone ceasing to own or control, directly and indirectly (through ownership,, contract, arrangement, understanding, relationship or otherwise), at least 40% of the voting rights of the capital stock of GenTek Inc., a Delaware corporation ("GenTek"), or, upon the consolidation or merger of GenTek or a successor of GenTek with or into another entity, of any surviving entity of GenTek or subsequent serving entity thereof (a "Mandatory Prepayment Event"). Notice of Optional Prepayment shall be delivered to the Holder at least 30 Business Days, but not more than 60 Business Days, before the Prepayment Date. The Company shall give the Holder notice promptly (and in any event no later than five Business Days) of the occurrence or existence of any event or condition requiring a Mandatory Prepayment, specifying the Prepayment Date which shall be not more than ten Business Days from the date of such notice. "Prepayment Date" means the date for Prepayment specified in the Company's notice of Optional Prepayment or Mandatory 4 Prepayment. Distributions to be paid on or before the Prepayment Date shall be payable to the Holders on the related dates of distribution, except to the extent such distributions are payable as part of the Final Period Distribution. Once notice of Prepayment is given, interest on this Note shall cease to accrue on and after the Prepayment Date and all rights of the Holder shall cease, except for the right of the Holder to receive the Prepayment Amount and any overdue interest thereon. 4. Reference Shares. The initial Reference Shares are shares of GenTek Common Stock. In addition to the adjustments to Reference Shares contained in the definition thereof, the number of Reference Shares shall be adjusted upon the occurrence of a GenTek Public Offering by multiplying (i) the number of Reference Shares at such time by (ii) a fraction, (A) the numerator of which is $10 and (B) the denominator of which is the price at which shares of GenTek Common Stock are sold to investors in the GenTek Public Offering. Notwithstanding the foregoing, in no event shall the adjustment for the GenTek Public Offering (if any) reduce the number of Reference Shares. 5. Certain Definitions The "Closing Price" of any security on any date of determination means the closing sale price (or, if no closing sale price is reported, the last reported sale price) of such security (regular way) on the NYSE on such date or, if such security is not listed for trading on the NYSE on that date, as reported in the composite transactions for the principal United States securities exchange on which such security is so listed, or if such security is not so listed on a United States national or regional securities exchange, as reported by the Nasdaq National Market, or if such security is not so reported, the last quoted bid price for such security in the over-the-counter market as reported by the National Quotation Bureau or similar organization. In the event that no such quotation is available for any day, the Company shall be entitled to determine the Closing Price on the basis of such quotations as it in good faith considers appropriate. The "Current Market Value" means, (i) with respect to the Maturity Date, the average Closing Price per Reference Share over the 20 trading days of such Reference Share (the "Averaging Period") immediately prior to (but not including) the fifth Business Day preceding the Maturity Date, and (ii) with respect to the Prepayment Date, the average Closing Price per Reference Share during the Averaging Period immediately prior to (but not including) the fifth Business Day preceding the Prepayment Date; provided that if Prepayment is required by reason of a Mandatory Prepayment Event, "Current Market Value" means the greater of (A) the average Closing Price per Reference Share during the 5 Averaging Period immediately prior to (but not including) the fifth Business Day preceding the date of the Mandatory Prepayment Event and (B) the market value per Reference Share as of the Prepayment Date as determined by an independent investment banking or valuation firm selected jointly by the Company and the Holder. "GenTek Public Offering" means a public offering and sale by GenTek of newly-issued shares of GenTek Common Stock (including through a rights offering to existing shareholders of GenTek) pursuant to a registration statement under the U.S. Securities Act of 1933, as amended, that is consummated no later than four months from the date of the original issuance of this Note. "Reference Company" means GenTek and any other issuer of a Reference Share. A "Reference Share" means, collectively, (i) one share of Common Stock, par value $0.01 per share of GenTek (the "GenTek Common Stock"); and (ii) each share of publicly traded equity securities received by a holder of one Reference Share in respect of such share of the GenTek Common Stock or other Reference Shares (either directly or as the result of successive applications of this paragraph) upon any of the following events: (A) the distribution on or in respect of a Reference Share in Reference Shares; (B) the combination of Reference Shares into a smaller number of shares or other units; (C) the subdivision of outstanding shares or other units of Reference Shares; (D) the conversion or reclassification of Reference Shares by issuance or exchange of other securities; (E) any consolidation or merger of a Reference Company, or any surviving entity or subsequent surviving entity of a Reference Company (a "Reference Company Successor"), with or into another entity (other than a merger or consolidation in which the Reference Company is the continuing corporation and in which the Reference Company common stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Reference Company or another corporation); (F) any statutory exchange of securities of the Reference Company or any Reference Company Successor with another corporation (other than in connection with a merger or acquisition and other than a statutory exchange of securities in which the Reference Company is the continuing corporation and in which the Reference Company common stock outstanding immediately prior to the statutory exchange is not exchanged for cash, securities or other property of the Reference Company or another corporation); or (G) any liquidation, dissolution or winding up of the Reference Company or any Reference Company Successor; provided that Reference Shares shall not include (x) securities received by a holder of Reference Shares representing the right to purchase or subscribe for additional Reference Shares by payment of consideration therefor, and (y) securities purchased or subscribed for by holders of Reference Shares by payment of consideration therefor. 6 6. Events of Default An "Event of Default" shall exist if any of the following conditions or events shall occur and be continuing: (1) the Company defaults in the payment of the Maturity Amount or Prepayment Amount when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or (2) the Company defaults in the payment of any Quarterly Interest or Additional Interest, if any, for more than five Business Days after the same becomes due and payable; or (3) the Company (i) is generally not paying, or admits in writing its inability to pay, its debts as they become due, (ii) files, or consents by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for the benefit of its creditors, (iv) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, (v) is adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for the purpose of any of the foregoing; or (4) a court or governmental authority of competent jurisdiction enters an order appointing, without consent by the Company, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company, or any such petition shall be filed against the Company, and such petition shall not be dismissed within 60 days. If an Event of Default described in paragraph (3) or (4) of the Events of Default Section above has occurred, this Note shall automatically become immediately due and payable. 7 If any Event of Default described in paragraph (1) or (2) of the Events of Default Section above has occurred and is continuing, the Holder may at any time, at its option, by notice or notices to the Company, declare this Note to be immediately due and payable. Upon this Note becoming due and payable under this Section 6, whether automatically or by declaration, this Note will forthwith mature and the entire unpaid Maturity Amount hereof shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived. If any Default or Event of Default has occurred and is continuing, and irrespective of whether this Note has become or has been declared immediately due and payable under this Section 6, the Holder may proceed to protect and enforce the rights of the Holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein, or for an injunction against a violation of any of the terms hereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise. 7. Calculations The books and records of the Company shall, absent manifest error, be conclusive as to all amounts and determinations payable or made hereunder. Without limiting the generality of the foregoing, the Company shall be responsible for making all calculations required under this Note, including the determination of: (i) the Contingent Principal Amount; (ii) the Current Market Value of the Reference Shares; (iii) the adjustments in Reference Shares upon a Reference Share Public Offering (if any); (iv) the Final Period Distribution; (v) the fair market value of any property distributed on the Reference Shares; (vi) the composition of Reference Shares; and (vii) the amount of interest payable upon prepayment or at maturity. 8. Miscellaneous 8.1 Amendments, Etc. No amendment, alteration, modification or waiver of any term or provision of this Note, nor consent to any departure by the Company herefrom, shall in any event be effective unless the same shall be in writing and signed by the Holder, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. 8 8.2 Further Assurances The Company agrees that at any time and from time to time, at its expense, the Company will promptly execute, acknowledge, file, deliver, record and publish all such supplements and amendments hereto and all such financing statements, continuation statements, instruments of further assurance and all such further certificates, instruments and documents, and take all such further action, as may be required by law, or as may be necessary or desirable, or that the Holder may reasonably request, in order to enable Holder to exercise and enforce its rights and remedies hereunder, and to carry out more effectively the purposes of this Agreement. 8.3 Transfers This Note is a registered Note and is transferable only with the consent of the Company upon surrender to the Company of this Note for registration of transfer, duly endorsed or accompanied by a written instrument of transfer duly executed by the Holder or its attorney duly authorized in writing. References in this Note to "Holder" shall mean the person in whose name this Note is at the time issued, and the Company may treat such person as the owner of this Note for the purpose of receiving payment and for all other purposes, and the Company shall not be affected by any notice to the contrary. 8.4 Severability Any provision of this Note which is prohibited or unenforceable in any juris diction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. There shall be substituted for any such provision so rendered ineffective a provision which, as far as legally possible, most nearly reflects the intent of the Company and the Holder. 8.5 Computation of Time Periods In this Note, in the computation of a period of time from a specified date to a later specified date, the word "from" means "from and including" and the word "to" means "to but excluding". 9 8.6 Waiver of Jury Trial The Company unconditionally waives the right to trial by jury in any legal or equitable action, suit or proceeding arising out of or relating to this Note or any transaction contemplated hereby or the subject matter of any of the foregoing. 8.7 Non-Recourse Against Others No member, director, officer, employee or authorized person, as such, of the Company shall have any liability for any obligation of the Company under this Note or for any claim based on, in respect of or by reason of, such obligations or the creation of this Note, except to the extent such person shall have expressly assumed, guaranteed or otherwise become liable for the obligations of the Company hereunder by a written instrument delivered to and for the benefit of the Holder. 8.8 Notices All notices and other communications required or permitted hereunder shall be in writing and shall be deemed validly given upon personal delivery (either by hand or by messenger) or one day after being sent by overnight courier service or by telecopy, at the following address or telecopy number or at such other address or telecopy number as the Company or the Holder shall have furnished to the other: (a) if to the Company, at, Wilmington Trust Company, 1100 N. Market Street, Wilmington, Delaware 19890, n/o PMM GK Investment LLC, attention: Matthew G. Waschull, fax: 1-302-651-1958; and (b) if to the Holder, at Walsh Management S.A., c/o Alan Lowe, Alan Lowe & Company, 46 Queen Ann Street, London England W1M 9LA, fax: 44-171-935-5758. 8.9 Defined Terms All defined terms used herein shall be equally applicable to the singular and plural forms of the terms defined. Any agreement defined or referred to herein shall include each amendment, modification and supplement thereto and waiver thereof as may become effective from time to time, except where otherwise indicated. The terms "hereof", "herein", "hereunder" and comparable terms refer to this entire Note and not to any particular section or other subdivision hereof. Except as otherwise indicated, references herein to any "Section" means a "Section" of this Note. 10 8.10 No Strict Construction The language used in this Note has been negotiated by the Company and the Holder and is, and shall be deemed to be, the language mutually chosen by them to express their mutual intent, and no rule of strict construction will be applied against any person. 8.11 Choice of Law THIS NOTE IS MADE AND DELIVERED IN NEW YORK, NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. PMM GK INVESTMENT LLC By: _________________________________ Name: Title: 11 -----END PRIVACY-ENHANCED MESSAGE-----