Exhibit 10.9
SECOND AMENDMENT AND WAIVER
TO THE SHAREHOLDERS AGREEMENT
This SECOND AMENDMENT AND WAIVER TO THE SHAREHOLDERS AGREEMENT is dated
as of December , 2001 (the "Waiver") and entered into by and among Meridian
Automotive Systems, Inc. (formerly known as American Bumper & Mfg. Co.), a
Michigan corporation (the "Company"), and each of the Shareholders of the
Company listed on the signature page hereof, and is made with reference to the
Shareholders Agreement, dated as of April 30, 1997, as amended on March 29,
2001, and as supplemented from time to time, by and among the Company and the
other parties thereto (the "Shareholders Agreement"). Capitalized terms used
herein without definition shall have the same meanings herein as set forth in
the Shareholders Agreement.
WHEREAS, certain Shareholders of the Company desire to sell or transfer
shares of Company Stock held by them, not to exceed, in the aggregate, 0.1% of
the outstanding shares of Company Stock calculated on a fully diluted basis, to
one or more persons who are currently officers of the Company, in one or more
transactions on, prior to, or after the date hereof (the "Share Transfer
Transactions");
WHEREAS, in connection with the Share Transfer Transactions, the
Company and the other parties hereto representing the Requisite Approval have
agreed to amend the Shareholders Agreement (as in effect immediately prior to
the date hereof), on the terms and conditions set forth herein, so as to waive
the application of certain provisions thereof to the Share Transfer
Transactions, including without limitation the provisions relating to transfer
restrictions and tag-along rights contained therein;
NOW, THEREFORE, in consideration of the foregoing and the covenants and
obligations set forth in this Waiver, the parties hereto agree as follows:
ARTICLE I
AMENDMENT AND WAIVER
SECTION 1.1 AMENDMENT AND WAIVER. The Shareholders Agreement is hereby
amended, MUTATIS MUTANDIS, so as to waive the application of the provisions
thereof to the Share Transfer Transactions, including without limitation the
provisions contained in Article III thereof (Restrictions on Transfer) and
Article IV thereof (Tag-Along Rights).
ARTICLE II
MISCELLANEOUS
SECTION 2.1 TERMS OF WAIVER. This Waiver shall become effective on the
date hereof and shall continue in full force and effect until the date on which
the Shareholders Agreement terminates.
SECTION 2.2 GOVERNING LAW. This Waiver shall be governed by and
construed in accordance with the laws of the State of Delaware.
SECTION 2.3 SEVERABILITY. If any provision of this Waiver or the
application of any such provision to any person or circumstances shall be held
invalid by a court of competent jurisdiction, the remainder of this Waiver,
including the remainder of the provision held invalid, or the application of
such provision to persons or circumstances other than those as to which it is
held invalid, shall not be affected thereby.
SECTION 2.4 COUNTERPARTS. This Waiver may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
SECTION 2.5 HEADINGS. All section headings herein are for convenience
of reference and are not part of this Waiver, and no construction or
interference shall be derived therefrom.
[SIGNATURE PAGE FOLLOWS]
2
IN WITNESS WHEREOF, this Waiver has been duly executed by each of the
parties hereto as of the date first written above.
CREDIT SUISSE FIRST BOSTON PRIVATE EQUITY, on behalf of
itself and, pursuant to a proxy, on behalf of
WINDWARD/MERBAN, L.P. and WINDWARD/MERCHANT, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: ATTORNEY-IN-FACT
CAPITAL D'AMERIQUE CDPQ INC., on behalf of itself and,
pursuant to a proxy, on behalf of WINDWARD/QUEBEC, L.L.C.
and WINDWARD/QUEBEC ▇▇ ▇▇, L.L.C.
By:
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Name:
Title:
By:
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Name:
Title:
BANCAMERICA CAPITAL INVESTORS II, L.P., on behalf of itself
and, pursuant to a proxy, on behalf of WINDWARD/BACI, L.L.C.
By: BancAmerica Capital Management II, L.P.,
its general partner
By: BACM II GP, LLC, its general partner
By: /s/ ▇▇▇▇▇▇▇ [ILLEGIBLE]
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Name: ▇▇▇▇▇▇▇ [ILLEGIBLE]
Title: MANAGING DIRECTOR
THE NORTHWESTERN MUTUAL LIFE INSURANCE CORPORATION
By:
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Name:
Title:
IN WITNESS WHEREOF, this Waiver has been duly executed by each of the
parties hereto as of the date first written above.
CREDIT SUISSE FIRST BOSTON PRIVATE EQUITY, on behalf of
itself and, pursuant to a proxy, on behalf of
WINDWARD/MERBAN, L.P. and WINDWARD/MERCHANT, L.P.
By:
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Name:
Title:
CAPITAL D'AMERIQUE CDPQ INC., on behalf of itself and,
pursuant to a proxy, on behalf of WINDWARD/QUEBEC, L.L.C.
and WINDWARD/QUEBEC ▇▇ ▇▇, L.L.C.
By:
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Name:
Title:
By:
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Name:
Title:
BANCAMERICA CAPITAL INVESTORS II, L.P., on behalf of itself
and, pursuant to a proxy, on behalf of WINDWARD/BACI, - L.L.C.
By: BancAmerica Capital Management II, L.P.,
its general partner
By: BACM II GP, LLC, its general partner
By:
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Name:
Title:
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Its Authorized Representative
SUEZ/MERIDIAN, L.L.C.
By: Suez Industrie, its managing member
By:
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Name:
Title:
INDOSUEZ CAPITAL CO-INVEST PARTNERS, L.P.
By: INDOSUEZ CMII INC., GENERAL PARTNER
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By: /s/ [ILLEGIBLE]
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By: /s/ [ILLEGIBLE]
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Name:
Title:
SUEZ CAPITAL PARTNERS II, L.P.
By: SCP II Management L.L.C., its general
partner
By: /s/ [ILLEGIBLE]
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By: /s/ [ILLEGIBLE]
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Name:
Title: Managing Member
SCP II ASSOCIATES
By: /s/ [ILLEGIBLE]
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Name: [ILLEGIBLE]
Title: Managing Partner
WINDWARD CAPITAL ASSOCIATES, L.P.
By: Windward Capital Associates, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: SECRETARY & TREASURER
WINDWARD/PARK AB, L.L.C.
By: Windward Capital Associates, L.P., its
manager
By: Windward Capital Associates, Inc., its
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: SECRETARY & TREASURER
WINDWARD/PARK ▇▇ ▇▇, L.L.C.
By: Windward Capital Associates, L.P., its
manager
By: Windward Capital Associates, Inc., its
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: SECRETARY & TREASURER
WINDWARD/PARK AB III, L.L.C.
By: Windward Capital Associates, L.P., its
manager
By: Windward Capital Associates, Inc., its
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: SECRETARY & TREASURER
WINDWARD/BADGER II, L.L.C.
By: Windward Capital Associates, L.P., its manager
By: Windward Capital Associates, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: SECRETARY & TREASURER
WINDWARD/BADGER AB III, L.L.C.
By: Windward Capital Associates, L.P., its
manager
By: Windward Capital Associates, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: SECRETARY & TREASURER
WINDWARD/BADGER ▇▇ ▇▇, L.L.C.
By: Windward Capital Associates, L.P., its
manager
By: Windward Capital Associates, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: SECRETARY & TREASURER
WINDWARD/NORTHWEST, L.P.
By: Windward Capital Associates, L.P., its general
partner
By: Windward Capital Associates, Inc., its
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: SECRETARY & TREASURER
WINDWARD/METROPOLITAN, L.L.C.
By: Windward Capital Associates, L.P., its
manager
By: Windward Capital Associates, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: SECRETARY & TREASURER
WINDWARD/▇▇▇▇▇, L.L.C.
By: Windward Capital Associates, L.P., its
manager
By: Windward Capital Associates, Inc., its
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: SECRETARY & TREASURER
MERIDIAN AUTOMOTIVE SYSTEMS, INC.
By:
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Name:
Title:
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