-----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, GAGOfbPw++U61KeHLvRdabT/7Ej2HSG5EjI3tWNQAnlYYpTTH4WbXxnnDrttNO+S jySRu0KUdZfdXU2Hwjls8g== 0000950123-03-013540.txt : 20040115 0000950123-03-013540.hdr.sgml : 20040115 20031208115636 ACCESSION NUMBER: 0000950123-03-013540 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20030703 DATE AS OF CHANGE: 20040115 GROUP MEMBERS: PMM GK INVESTMENT LLC GROUP MEMBERS: SANDRA G. MONTRONE GROUP MEMBERS: SEWALL ASSOCIATES FAMILY LP 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: 031041899 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 y92331a2sc13dza.txt AMENDMENT NO.2 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 2)* 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) June 24, 2003 (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 11 (1) Names of Reporting Persons Paul M. Montrone S.S. or I.R.S. Identification Nos. of Above Persons (2) Check the Appropriate Box if a (a) [ ] Member of a Group (b) [ ] (3) SEC Use Only (4) Source of Funds Not Applicable (see Item 3) (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 Beneficially Owned (7) Sole Voting Power 5,065,478 by Each Reporting Person With (8) Shared Voting Power 0 (9) Sole Dispositive Power 5,065,478 (10) Shared Dispositive Power 0 (11) Aggregate Amount Beneficially Owned by Each Reporting Person 5,065,478 (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] (13) Percent of Class Represented by Amount in Row 11 20.0% (See Item 5(b)) (14) Type of Reporting Person IN
SCHEDULE 13D CUSIP No. 37245X 10 4 Page 3 of 11 (1) Names of Reporting Persons S.S. PMM GK Investment LLC or I.R.S. Identification Nos. of Above Persons N/A (2) Check the Appropriate Box if a (a) [ ] Member of a Group (b) [ ] (3) SEC Use Only (4) Source of Funds Not Applicable (see Item 3) (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 Beneficially Owned (7) Sole Voting Power 0 by Each Reporting Person With (8) Shared Voting Power 0 (9) Sole Dispositive Power 0 (10) Shared Dispositive Power 0 (11) Aggregate Amount Beneficially Owned by Each Reporting Person 0 (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] (13) Percent of Class Represented by Amount in Row 11 0.0% (14) Type of Reporting Person OO
SCHEDULE 13D CUSIP No. 37245X 10 4 Page 4 of 11 (1) Names of Reporting Persons Sandra G. Montrone S.S. or I.R.S. Identification Nos. of Above Persons (2) Check the Appropriate Box if a (a) [ ] Member of a Group (b) [ ] (3) SEC Use Only (4) Source of Funds Not Applicable (see Item 3) (5) Check if Disclosure of Legal [ ] Proceedings is Required Pursuant to Items 2(d) or 2(e) (6) Citizenship or Place of U.S.A. Organization Number of Shares Beneficially Owned (7) Sole Voting Power 2,756,543 by Each Reporting Person With (8) Shared Voting Power 0 (9) Sole Dispositive Power 2,756,543 (10) Shared Dispositive Power 0 (11) Aggregate Amount Beneficially Owned by Each Reporting Person 2,756,543 (12) Check if the Aggregate Amount [ ] in Row (11) Excludes Certain Shares (13) Percent of Class Represented by 10.9% (See Item 5(b)) Amount in Row 11 (14) Type of Reporting Person IN
SCHEDULE 13D CUSIP No. 37245X 10 4 Page 5 of 11 (1) Names of Reporting Persons S.S. SEWALL ASSOCIATES FAMILY, L.P. or I.R.S. Identification Nos. of Above Persons N/A (2) Check the Appropriate Box if a (a) [ ] Member of a Group (b) [ ] (3) SEC Use Only (4) Source of Funds Not Applicable (see Item 3) (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 Beneficially Owned (7) Sole Voting Power 0 by Each Reporting Person With (8) Shared Voting Power 0 (9) Sole Dispositive Power 0 (10) Shared Dispositive Power 0 (11) Aggregate Amount Beneficially Owned by Each Reporting Person 0 (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] (13) Percent of Class Represented by Amount in Row 11 0.0% (14) Type of Reporting Person PN
SCHEDULE 13D CUSIP No. 37245X 10 4 Page 6 of 11 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, an individual, and (iv) Sewall Associates Family, L.P., a Delaware limited partnership. (b) The business address of Paul M. Montrone, Sandra G. Montrone and Sewall Associates Family L.P. 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 of the Issuer, the Chairman of the Board and Chief Executive Officer of Fisher Scientific International Inc., and the Chairman of the Board of The General Chemical Group Inc. Paul M. Montrone is a general partner of Sewall Associates Family, L.P. 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 and is also a general partner of Sewall Associates Family, L.P. Mr. SCHEDULE 13D CUSIP No. 37245X 10 4 Page 7 of 11 and Mrs. Montrone are the only general partners of Sewall Associates Family, L.P. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Not applicable. This Schedule 13D is filed in connection with a sale of the Common Stock by the Reporting Persons. ITEM 4. PURPOSE OF TRANSACTION. Prior to June 24, 2003, PMM GK Investment LLC owned 2,061,046 shares of Common Stock and 791,686 shares of Class B Common Stock, and Sewall Associates Family L.P. owned 1,400,163 shares of Common Stock and 599,837 shares of Class B Common Stock. Pursuant to a Stock Purchase Agreement (the "Stock Purchase Agreement") dated as of June 24, 2003 among Sewall Associates Family L.P. and PMM GK Investment LLC, as sellers, and Quetico L.L.C., an Illinois limited liability company, as buyer, Sewall Associates Family, L.P. sold 2,000,000 shares of Common Stock (consisting of 1,400,163 previously-outstanding shares of Common Stock and 599,837 shares of Common Stock resulting from the conversion of such number of shares of Class B Common Stock into Common Stock) to Quetico L.L.C. for an aggregate purchase price of $20,000, and PMM GK Investment LLC sold 2,852,732 shares of Common Stock (consisting of 2,061,046 previously-outstanding shares of Common Stock and 791,686 shares of Common Stock resulting from the conversion of such number of shares of Class B Common Stock into Common Stock) to Quetico L.L.C. for an aggregate purchase price of $28,527.32. Both sales closed on June 24, 2003. PMM GK Investment LLC and Sewall Associates Family, L.P. sold these shares because Paul M. Montrone considered that it was in their interests to do so. 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. The Reporting Persons note, however, that the Issuer is under the protection of U.S. Bankruptcy Code, and may, as a result, take actions with respect to such matters set forth in paragraphs (a) through (j) of Item 4 of Schedule 13D, and Mr. Montrone, as the Chairman of the Board of the Issuer; may have to act with respect to such matters. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) Paul M. Montrone beneficially owns 2,560,141 shares of Common Stock and 2,505,337 shares of Class B Common Stock. Sandra G. Montrone beneficially owns 2,756,543 shares of Common Stock and no shares of Class B Common Stock. PMM GK Investment LLC beneficially owns no shares of Common Stock and no shares of Class B Common Stock. Sewall Associates Family, L.P. SCHEDULE 13D CUSIP No. 37245X 10 4 Page 8 of 11 beneficially owns no shares of Common Stock and no shares of Class B Common Stock. Such shares are owned as follows: (i) 2,556,541 shares of Common Stock are held directly by Paul M. Montrone; (ii) 2,505,337 shares of Class B Common Stock are held directly by Paul M. Montrone; (iii) 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; (iv) 36,000 shares of Common Stock are held by Sandra G. Montrone; and (v) 2,720,543 shares of Common Stock are held by The Paul and Sandra Montrone 2001 Descendants' Trust of which Sandra G. Montrone is the sole trustee (the "Descendants' Trust"). An additional 120,000 shares of Common Stock are held by a charitable foundation, of which Paul M. Montrone is a director and Sandra G. Montrone is a director and officer. By virtue of their positions with the foundation, Mr. and Mrs. Montrone may be deemed to be beneficial owners of the shares of Common Stock held by the foundation, but Mr. and Mrs. Montrone disclaim 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 and the shares of Common Stock held by the Trust. Sandra G. Montrone has sole voting and dispositive power with respect to the shares of Common Stock held directly by her and the shares of Common Stock owned by the Descendants' Trust. 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 constitute 57.7% 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 Sandra G. Montrone has or shares voting power constitutes 5.8% of the aggregate voting power of the Issuer. SCHEDULE 13D CUSIP No. 37245X 10 4 Page 9 of 11 (c) There were no transactions, other than the sale of Common Stock described herein, in the class of securities reported on that were effected during the past sixty days by the Reporting Persons. The statements in Item 5 of this Schedule 13D speak as of the date of the filing of this Amendment No. 2, and do not reflect transfers of shares of Common Stock of Class B Common Stock since the date of Amendment No. 1 among affiliates of Mr. or Mrs. Montrone that did not result in any change in the beneficial ownership of shares of Common Stock or shares of Class B Common Stock. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Pursuant to a registration rights agreement with the Issuer, Paul M. Montrone and his affiliates 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 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 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 July 2, 2003, 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. Incorporated by reference to Exhibit 2 of the Amendment No. 1 to the Statement on Schedule 13D of Paul M. Montrone (filed on March 9, 2000). Exhibit 3. 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). SCHEDULE 13D CUSIP No. 37245X 10 4 Page 10 of 11 Exhibit 4. Stock Purchase Agreement, dated as of June 24, 2003 among Sewall Associates Family, L.P., PMM GK Investment LLC and Quetico, L.L.C. relating to the sale and purchase of shares of Common Stock of the Issuer. SCHEDULE 13D CUSIP No. 37245X 10 4 Page 11 of 11 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: July 2, 2003 /s/ Paul M. Montrone ------------------------------------------- Paul M. Montrone PMM GK INVESTMENT LLC By:/s/ Paul M. Montrone ---------------------------------------- Paul M. Montrone, as Manager /s/ Sandra G. Montrone ------------------------------------------- Sandra G. Montrone SEWALL ASSOCIATES FAMILY, L.P. By: /s/ Paul M. Montrone ---------------------------------------- Paul M. Montrone, as General Partner INDEX OF EXHIBITS Exhibit 1. Joint Filing Agreement, dated July 2, 2003, 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. Incorporated by reference to Exhibit 2 of the Amendment No. 1 to Statement on Schedule 13D of Paul M. Montrone (filed on March 9, 2000). Exhibit 3. 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). Exhibit 4. Stock Purchase Agreement, dated as of June 24, 2003 among Sewall Associates Family, L.P., PMM GK Investment LLC and Quetico, L.L.C. relating to the sale and purchase of shares of Common Stock of the Issuer. EX-99.1 3 y92331a2exv99w1.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: July 2, 2003 /s/ Paul M. Montrone ---------------------------------------- Paul M. Montrone PMM GK INVESTMENT LLC By: /s/ Paul M. Montrone ------------------------------------ Paul M. Montrone, as Manager /s/ Sandra G. Montrone ---------------------------------------- Sandra G. Montrone SEWALL ASSOCIATES FAMILY, L.P. By: /s/ Paul M. Montrone ------------------------------------ Paul M. Montrone, as General Partner EX-99.4 4 y92331a2exv99w4.txt STOCK PURCHASE AGREEMENT Exhibit 4 STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of June 24, 2003, between Sewall Associates Family, L.P., a Delaware limited partnership ("Sewall"), and PMM GK Investment LLC, a Delaware limited liability company ("PMM" and together with Sewall, the "Sellers"), and Quetico, L.L.C., an Illinois Limited Liability Company (the "Purchaser"). Recitals A. Sewall 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. C. Sewall 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 "Sewall 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 Sewall 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) Sewall will sell, and the Purchaser will purchase, the Sewall Shares for an aggregate purchase price of $20,000 (the "Sewall 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 Latona Associates Inc., a Delaware corporation, One Liberty Lane, Hampton, New Hampshire 03842 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) Sewall and PMM will deliver to the Purchaser stock certificates representing the Sewall 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 Sewall Purchase Price and the PMM Purchase Price to Sewall and PMM respectively by wire transfers of immediately available funds to such bank accounts as may be designated by Sewall 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. Sewall 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 Sewall Shares and to execute and deliver this Agreement and perform its obligations hereunder. The person executing and delivering this Agreement on behalf of Sewall is a duly appointed and acting general partner of Sewall, with full power and authority to execute and deliver this Agreement on behalf of Sewall. 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 2 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 Sewall Shares and the PMM Shares are owned, beneficially and of record, by Sewall and PMM respectively, free and clear of all Liens. The Sewall Shares and the PMM Shares have been duly authorized and validly issued and are fully paid and non-assessable. Sewall has the sole right to vote or to dispose of the Sewall Shares and none of the Sewall Shares is subject to any agreement, arrangement or restriction with respect to the voting or disposition of the Sewall 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 Sewall to sell, transfer, assign, grant a participation interest in, option, pledge, hypothecate or otherwise dispose or transfer any of the Sewall Shares, and (ii) no person has any contractual right or obligation to purchase or otherwise acquire any of the Sewall 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 3 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. 4 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. 5 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, 6 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 Sewall: c/o Latona Associates Inc. One Liberty Lane Hampton, New Hampshire 03842 Attention: Paul M. Montrone if to PMM: c/o Latona Associates Inc. One Liberty Lane Hampton, New Hampshire 03842 Attention: Paul M. Montrone if to the Purchaser: c/o Equity Group Investments, L.L.C. Two North Riverside Plaza, Suite 600 Chicago, Illinois 60606 Attention: Donald J. Liebentritt 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. 7 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. 8 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. SEWALL ASSOCIATES FAMILY, L.P., Acting by Paul M. Montrone, its General Partner By /s/ Paul M. Montrone ---------------------------------- Name: Paul M. Montrone PMM GK INVESTMENT LLC By /s/ Paul M. Montrone ---------------------------------- Name: Paul M. Montrone Title: Manager QUETICO, L.L.C. An Illinois Limited Liability Company By: /s/ Donald J. Liebentritt ---------------------------------- Name: Donald J. Liebentritt Title: President 9 -----END PRIVACY-ENHANCED MESSAGE-----