Exhibit 10.5
EXECUTION VERSION
STOCKHOLDERS AGREEMENT
Dated as of October 7, 2003
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS......................................................................................... 1
1.1 Definitions................................................................................. 1
1.2 Rules of Construction....................................................................... 5
ARTICLE II MANAGEMENT OF THE COMPANY AND CERTAIN ACTIVITIES................................................... 5
2.1 Board of Directors.......................................................................... 5
2.2 Director Compensation....................................................................... 7
2.3 Special Director Votes for Certain Matters.................................................. 7
2.4 Special Stockholder Actions................................................................. 8
2.5 Other Activities of the Holders; Fiduciary Duties........................................... 9
ARTICLE III TRANSFERS OF SECURITIES........................................................................... 9
3.1 Preemptive Rights........................................................................... 9
3.2 Right of First Offer........................................................................ 10
3.3 Drag Along Rights........................................................................... 11
3.4 Tag Along Rights............................................................................ 12
3.5 Certain Events Not Deemed Transfers......................................................... 13
3.6 Transfer and Exchange...................................................................... 13
3.7 Replacement Securities..................................................................... 13
ARTICLE IV LIMITATION ON TRANSFERS........................................................................... 13
4.1 Restrictions on Transfer................................................................... 13
4.2 Restrictive Legends........................................................................ 13
4.3 Notice of Proposed Transfers............................................................... 14
4.4 Termination of Certain Restrictions........................................................ 14
ARTICLE V MISCELLANEOUS...................................................................................... 15
5.1 Counterparts............................................................................... 15
5.2 Governing Law.............................................................................. 15
5.3 Notices.................................................................................... 15
5.4 Severability............................................................................... 16
5.5 Successors and Assigns..................................................................... 16
5.6 Termination................................................................................ 16
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TABLE OF CONTENTS
(CONTINUED)
PAGE
5.7 No Waivers; Amendments..................................................................... 16
ii
EXECUTION COPY
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT is entered into as of October [ ], 2003
(this "Agreement"), among ACP Holding Company, a Delaware corporation (together
with its successors, the "Company"), the Management Stockholders and MacKay
▇▇▇▇▇▇▇ LLC ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), Citigroup Mezzanine III, L.P. ("CM-III") and
Trust Company of the West ("TCW," and together with MacKay ▇▇▇▇▇▇▇ and CM-III,
the "Standby Purchasers"), and all other holders of shares of Common Stock and
New Warrants of the Company as of the Effective Date. Terms used herein and not
defined shall have the meanings ascribed to such terms in the Plan (as defined
below).
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms
have the following meanings:
"5% Stockholder" means and includes each Stockholder who (together with
its Affiliates) is the record or Beneficial Owner of 5% or more of the
outstanding Common Stock on a fully diluted basis, including, without
limitation, any "group" of Stockholders (within the meaning of Section 13(d) of
the Exchange Act) which is the record Beneficial Owner of 5% or more of the
outstanding Common Stock on a fully diluted basis.
"Accredited Investor" means an "accredited investor" as defined in Rule
501(a) of Regulation D under the Securities Act or any successor rule then in
effect.
"Accredited Offeree" has the meaning set forth in Section 3.1(a).
"Affiliate" means, in respect of any specified person, any other person
who, directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with such specified person. For
purposes of this definition, "control" (including the terms "controlled by" and
"under common control with") when used in respect of any specified person means
the power to direct the management and policies of such specified person,
directly or indirectly, whether through the ownership of voting securities, by
contract, or otherwise.
"Agreement" has the meaning set forth in the preamble hereto.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as codified
in Title 11 of the United States Code, 11 U.S.C. Section 101, et seq., as
amended from time to time.
"Beneficial Owner" has the meaning set forth in Rule 13d-3 under the
Exchange Act; provided, however, that each Beneficial Owner of any New Warrant
shall ipso facto be deemed to be the Beneficial Owner of all of the shares of
Common Stock then issuable upon the exercise of such New Warrant.
"Board of Directors" means the board of directors of the Company.
"Business Day" means any day other than Saturday, Sunday, or any day on
which banks in the City of New York, New York are required or authorized by law
to be closed for business.
"CM-III Designee" has the meaning set forth in Section 2.1(b)(iii).
"Common Stock" means the Common Stock, par value $0.01 per share, of
the Company, or, in the event that such Common Stock is, at any time following
the Effective Date, converted into any other class of security, such other class
of security. All references herein to the "Common Stock on a fully diluted
basis" shall include, without limitation, all shares of Common Stock then
issuable upon then outstanding New Warrants.
"Common Stock Equivalents" means, without duplication with any other
Common Stock or Common Stock Equivalents, any rights, warrants, options,
convertible securities or indebtedness, exchangeable securities or indebtedness,
or other rights, exercisable for or convertible or exchangeable into, directly
or indirectly, Common Stock and securities convertible or exchangeable into
Common Stock, whether at the time of issuance, upon the passage of time, or the
occurrence of some future event.
"Company" has the meaning set forth in the preamble hereto.
"DGCL" means the General Corporation Law of the State of Delaware, as
amended from time to time, or any successor statute.
"Effective Date" means the date on which the Plan became effective.
"Election Period" has the meaning set forth in Section 3.2(b).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Family Group" means, in respect of any person, the spouse and lineal
descendants of such person.
"First Option" has the meaning set forth in Section 3.2(b).
"MacKay ▇▇▇▇▇▇▇ Designee" has the meaning set forth in Section
2.1(b)(ii).
"Management Compensation Plans" means the Employment Agreements,
Severance Plans, Change of Control Agreements, Annual Incentive Plan and
Management Equity Incentive Plan, as described in Article IV.L. of the Plan.
"Management Stockholders" means each officer of the Company who is a
party to one or more Management Compensation Plans, including but not limited to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. LaChey, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Varkaly, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇.
"MetLife" has the meaning set forth in Section 3.4(a).
"Minimum CM-III Ownership" has the meaning set forth in Section
2.1(b)(iii).
"Minimum MacKay ▇▇▇▇▇▇▇ Ownership" has the meaning set forth in Section
2.1(b)(ii).
"Minimum TCW Ownership" has the meaning set forth in Section
2.1(b)(iv).
"New Warrants" means warrants to acquire shares of Common Stock
expiring 10 years from the Effective Date and having an exercise price of $0.01
per share.
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"Offer Notice" has the meaning set forth in Section 3.1(a).
"Offered Securities" has the meaning set forth in Section 3.1(a).
"Option Holders" has the meaning set forth in Section 3.2(a).
"Participation Offer" has the meaning set forth in Section 3.4(a).
"Permitted Transfers" means (i) in the case of an individual
Stockholder (other than Management Stockholders, unless permitted under the
terms pursuant to which shares of the Common Stock to be transferred were
initially issued to the Management Stockholders), Transfers pursuant to
applicable laws of descent and distribution or to any member of such
Stockholder's Family Group or to any Affiliate of such Stockholder or (ii) in
the case of any Stockholder that is not an individual, Transfers among its
Affiliates, employees, or as a distribution in kind to the partners,
stockholders or beneficiaries of such Stockholder (other than a Stockholder or
beneficiary acquiring an interest in such Stockholder in connection with or in
anticipation of such Transfer). Persons to whom Permitted Transfers are referred
to herein as "Permitted Transferees."
"person" means any individual, corporation, partnership, limited
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization, or government or political
subdivision thereof.
"Plan" means the Joint Prepackaged Plan of Reorganization of the
Company, NFC Castings, Inc., Neenah Foundry Company and certain of its
Subsidiaries under Chapter 11 of the Bankruptcy Code, dated July 1, 2003,
including the Plan Supplement and other supplements, appendices and schedules to
the Plan, in each case, as amended or supplemented on or before the Effective
Date.
"Preemptive Rights Offer" has the meaning set forth in Section 3.1(a).
"Preemptive Rights Transaction" has the meaning set forth in Section
3.1(a).
"Proposed Purchaser" has the meaning set forth in Section 3.1(a).
"Qualified Public Offering" means the sale in a public offering
pursuant to a registration statement under the Securities Act and underwritten
by an internationally recognized investment bank selected by the Company of
Common Stock resulting in aggregate gross proceeds to the Company (based upon
the offering price of such offering) of at least $50 million.
"Registered Sale" means the sale of shares of Common Stock pursuant to
a registration statement under the Securities Act in connection with the
exercise of registration rights.
"Reorganized Neenah" means Neenah Foundry Company, a Wisconsin
corporation and an indirect wholly-owned Subsidiary of the Company, or any
successor(s) thereto by merger, consolidation or otherwise, on or after the
Effective Date.
"Right of First Offer Proposed Transfer" has the meaning set forth in
Section 3.2(a).
"Right of First Offer Selling Stockholder" means and includes each
Stockholder who (together with its Affiliates) is the record or Beneficial Owner
of 10% or more of the outstanding Common Stock on a fully diluted basis,
including, without limitation, any "group" of Stockholders (within the meaning
of
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Section 13(d) of the Exchange Act) which is the record Beneficial Owner of 10%
or more of the outstanding Common Stock on a fully diluted basis.
"Sale of the Company" has the meaning set forth in Section 3.3(a).
"Second Option" has the meaning set forth in Section 3.2(b).
"Securities" means the Common Stock and Common Stock Equivalents.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Shares" has the meaning set forth in Section 3.2(a).
"Special Director Vote" has the meaning set forth in Section 2.2.
"Stockholders" means, collectively, the Management Stockholders, the
Standby Purchasers and all other holders of shares of Common Stock and New
Warrants of the Company as of the Effective Date. Pursuant to the Plan, all
Stockholders, whether or not they have executed this Agreement, shall be bound
by the provisions of this Agreement.
"Subsidiary" of any person means (i) a corporation a majority of the
voting power of which is owned by such person, by one or more Subsidiaries of
such person, or by such person and one or more Subsidiaries of such person, and
(ii) any person other than a corporation in which such person, a Subsidiary of
such person, or such person and one or more Subsidiaries of such person,
directly or indirectly, at the date of determination thereof, has (x) at least a
majority ownership interest or (y) the power to elect or direct the election of
the directors or other governing body of such person.
"Tag-Along Participating Shareholder" has the meaning set forth in
Section 3.4(a).
"Tag-Along Selling Shareholder" has the meaning set forth in Section
3.4(a).
"Tag-Along Transaction" has the meaning set forth in Section 3.4(a).
"TCW Designee" has the meaning set forth in Section 2.1(b)(iv).
"Transfer" means any direct or indirect sale, conveyance, transfer,
pledge, hypothecation or other disposition, of any nature whatsoever, of any
security or any interest, of any nature whatsoever, in any security.
"Transfer Notice" has the meaning set forth in Section 3.2(a).
"Transferor" has the meaning set forth in Section 3.2(a).
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1.2 Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it; (ii) words in the singular include
the plural and vice versa; (iii) words in masculine, feminine, or neuter gender
include each other gender; (iv) references to Articles, Sections, or other
subdivisions shall refer to Articles, Sections, and other subdivisions of this
Agreement; (v) provisions apply to successive events and transactions; and (vi)
"herein," "hereof," "hereunder," and other words of similar import refer to this
Agreement as a whole and not to any particular Article, Section, or other
subdivision. The article and section headings of 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.
ARTICLE II
MANAGEMENT OF THE COMPANY AND CERTAIN ACTIVITIES
2.1 Board of Directors.
(a) Composition. So long as MacKay ▇▇▇▇▇▇▇ has the
Minimum MacKay ▇▇▇▇▇▇▇ Ownership, CM-III has the Minimum CM-III
Ownership or TCW has the Minimum TCW Ownership, the Board of Directors
shall consist at all times of a total of five directors.
(b) Voting. The Company will nominate, and each of the
Stockholders will vote all of their Common Stock to cause, the
following representatives to be elected to the Board of Directors:
(i) the then duly elected and acting Chief
Executive Officer of the Company;
(ii) one member of the Board of Directors
designated by MacKay ▇▇▇▇▇▇▇ so long as MacKay ▇▇▇▇▇▇▇ and its
Affiliates and Permitted Transferees are the Beneficial Owners
of at least 10% of the Common Stock on a fully-diluted basis
(the "Minimum MacKay ▇▇▇▇▇▇▇ Ownership") and one additional
member of the Board of Directors designated by MacKay ▇▇▇▇▇▇▇
so long as MacKay ▇▇▇▇▇▇▇ and its Affiliates and Permitted
Transferees are the Beneficial Owners of at least 20% of the
Common Stock on a fully-diluted basis (together, the "MacKay
▇▇▇▇▇▇▇ Designees");
(iii) one member of the Board of Directors
designated by CM-III (the "CM-III Designee") so long as CM-III
and its Affiliates and Permitted Transferees are in the
aggregate the Beneficial Owners of at least 10% of the Common
Stock on a fully-diluted basis (the "Minimum CM-III
Ownership"); and
(iv) one member of the Board of Directors
designated by TCW (the "TCW Designee") so long as TCW and its
Affiliates and Permitted Transferees are in the aggregate the
Beneficial Owners of at least 10% of the Common Stock on a
fully-diluted basis (the "Minimum TCW Ownership").
(c) Vacancies. If, prior to his or her election to the
Board of Directors pursuant to Section 2.1(b)(ii), (iii) or (iv), any
MacKay ▇▇▇▇▇▇▇ Designee, CM-III Designee or TCW Designee shall be
unable or unwilling to serve as a director of the Company, MacKay
▇▇▇▇▇▇▇, ▇▇-III or TCW, as applicable, shall be entitled to designate a
replacement who shall then be a MacKay ▇▇▇▇▇▇▇ Designee, CM-III
Designee or TCW Designee, as the case may be, for purposes of this
Article II. If, after his election to the Board of Directors pursuant
to Section 2.1(b), any MacKay ▇▇▇▇▇▇▇ Designee, CM-III Designee or TCW
Designee, as the case may be, shall resign or be removed (which, except
as otherwise provided by applicable law, may only be done by
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MacKay ▇▇▇▇▇▇▇, ▇▇-III or TCW, as applicable), or be unable to serve
for any reason prior to the expiration of his or her term as a director
of the Company, MacKay ▇▇▇▇▇▇▇, ▇▇-III or TCW, as applicable, shall,
within 30 days after notice from the Company of such event, notify the
Board of Directors in writing of a replacement designee, and either (i)
the Holders shall comply with Section 2.1(d) to ensure the election to
the Board of Directors of such replacement designee to fill the
unexpired term of the designee whom such replacement designee is
replacing or (ii) the Board of Directors shall elect or appoint such
replacement designee to fill the unexpired term of the designee whom
such replacement designee is replacing. If MacKay ▇▇▇▇▇▇▇, ▇▇-III or
TCW requests that any of its respective designees be removed as a
director (with or without cause), the Company and each Shareholder
shall take all actions as may be necessary or expedient to effect such
removal upon such request.
(d) Removal. No member of the Board of Directors shall be
removed without the consent of the Stockholder which has the right to
designate such member as provided in clause (b) above.
(e) Election of Designees. Each Stockholder shall vote
all of the shares of Common Stock of which it is a Beneficial Owner at
any regular or special meeting of stockholders of the Company or
consent in any written consent executed in lieu of such a meeting of
stockholders and shall take all other actions (including, without
limitation, using its best efforts to cause the Board of Directors to
take all actions) necessary to give effect to the agreements contained
in this Agreement (including the election of the MacKay ▇▇▇▇▇▇▇
Designee(s), CM-III Designee and TCW Designee) and to ensure that the
charter and bylaws of the Company as in effect at any time hereafter do
not conflict in any respect with the provisions of this Agreement. In
order to effectuate the provisions of this Article II, at such time or
time as any action or vote is required to be taken by a Stockholder
pursuant to this Agreement, such Stockholder shall use its best efforts
to call, or cause the appropriate officers and directors of the Company
to call, a special or annual meeting of stockholders of the Company, or
execute or cause to be executed a consent in writing in lieu of any
such meetings pursuant to Section 228(a) of the DGCL.
(f) Costs and Expenses. The Company will pay all
reasonable out-of-pocket expenses incurred by each MacKay ▇▇▇▇▇▇▇
Designee(s), CM-III Designee and TCW Designee in connection with
participating in meetings of the Board of Directors (and any committee
thereof) and the boards of directors (and any committee thereof) of any
Subsidiaries of the Company.
(g) D&O Insurance and Compensation of Non-Management
Directors. The Company shall maintain director and officer insurance in
an amount of no less than $25 million. The Company may pay to
non-management directors such fees, and grant such stock options, in
such amounts as may be approved from time to time by MacKay ▇▇▇▇▇▇▇,
▇▇-III and TCW, provided that MacKay ▇▇▇▇▇▇▇ has the Minimum MacKay
▇▇▇▇▇▇▇ Ownership, CM-III has the Minimum CM-III Ownership and TCW has
the Minimum TCW Ownership, as the case may be (or if none of them has
such minimum ownership, as approved by a majority of the non-management
directors).
(f) Board of Directors of Subsidiaries. The board of
directors of any Subsidiary of the Company shall consist of the same
number of directors and shall have the same composition as the Board of
Directors as set forth in clauses (a) and (b) above. The provisions of
this Section 2.1 in respect of election of designees, removal,
vacancies, and costs and expenses shall apply equally to the board of
directors of any Subsidiary of the Company.
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(g) Additional Representatives at Board Meetings.
Notwithstanding the preceding provisions of this Section 2.1, so long
as MacKay ▇▇▇▇▇▇▇ has the Minimum MacKay ▇▇▇▇▇▇▇ Ownership, CM-III has
the Minimum CM-III Ownership or TCW has the Minimum TCW Ownership, each
of MacKay ▇▇▇▇▇▇▇, ▇▇-III and TCW shall have the right to designate one
representative to attend all meetings of the Board of Directors of the
Company as an observer. For avoidance of doubt, such representative
shall not be deemed to be a member of the Board of Directors, shall not
have any voting rights and shall not be entitled to any compensation or
reimbursement of costs and expenses by the Company in connection with
attending meetings of the Board of Directors of the Company.
2.2 Director Compensation.
(a) Cash Compensation. Each member of the Board of
Directors of the Company that is not an officer of the Company shall be
entitled to receive annual compensation for their services in the
amount $40,000, payable in cash quarterly in four equal installments,
and are entitled to receive reimbursement by the Company for all
reasonable out-of-pocket expenses, including, without limitation,
travel expenses, incurred by such director in connection with the
performance of such director's duties. However, no more than one MacKay
▇▇▇▇▇▇▇ Designee who is a director, an officer, an employee or a
shareholder of MacKay ▇▇▇▇▇▇▇ or its Affiliates shall be entitled to
such compensation, but shall be entitled to reimbursement of expenses
as aforesaid. In addition, each member of the Board of Directors that
is not an officer of the Company shall be paid a fee of $1,000 for in
person attendance at annual, regular, special and adjourned meetings of
the Board of the Directors of the Company or committee meetings of the
Board of the Directors of the Company.
(b) Stock Compensation. On the date hereof, the Company
shall, pursuant to the Plan, issue to each member of the Board of
Directors of the Company that is not an officer of the Company 200,000
shares of Common Stock representing 0.25% of the Company's Common Stock
on a fully-diluted basis as of the Effective Date. However, no more
than one MacKay ▇▇▇▇▇▇▇ Designee who is a director, an officer, an
employee or a shareholder of MacKay ▇▇▇▇▇▇▇ or its Affiliates shall be
entitled to receive such shares.
2.3 Special Director Votes for Certain Matters. Notwithstanding
that approval by a lesser percentage vote may be permitted by applicable law and
that fewer than five directors may then be in office, the parties hereto agree
that the vote of at least three of the members of the board of directors of the
Company or any of its Subsidiaries, as applicable (a "Special Director Vote"),
shall be required to authorize the Company or any of its Subsidiaries, as
applicable, to take any of the following actions:
(a) making any acquisition or disposition in which the
consideration exceeds $1.0 million;
(b) incurring any indebtedness other than (x) as approved
pursuant to the annual capital expenditure and operating budgets of the
Company, (y) indebtedness existing on the Effective Date or (z) other
indebtedness not to exceed $500,000 in the aggregate;
(c) approving the Company's annual business plan (which
business plan shall include annual capital expenditure and operating
budgets);
(d) any capital expenditures exceeding any amounts set
forth in the annual business plan or any deviation therefrom;
7
(e) commence any process for an initial public offering
for the account, in whole or in part, of the Company, of the securities
of the Company or any of its Subsidiaries;
(f) the creation of any compensation or option plan
(other than the Management Compensation Plans) and the setting of
annual compensation (including bonuses) for any members of the senior
management of the Company and its Subsidiaries;
(g) authorize, issue or enter into any agreement
providing for the sale or issuance of any capital stock of the Company
or any of its Subsidiaries (or securities convertible into or
exchangeable for capital stock) except pursuant to the Management
Compensation Plans;
(h) any voluntary liquidation or dissolution of the
Company or any of its Subsidiaries;
(i) declaration of dividends or other distributions or
repurchases or redemptions of capital stock or options by the Company
or any of its Subsidiaries;
(h) termination of the Chief Executive Officer of the
Company or Reorganized Neenah;
(j) the entry by the Company or any of its Subsidiaries
into a line of business unrelated to the lines of business of the
Company and its Subsidiaries as of the Effective Date;
(k) the creation of any committees of the Board of
Directors and/or the delegation of any power of the Board of Directors
to any such committee;
(l) taking any action, directly or indirectly, in
contemplation of any of the foregoing; and
(m) any other actions that may from time to time be
agreed upon by the parties to this Agreement in writing.
2.4 Special Stockholder Actions. Except as set forth below, all
matters to be determined by the stockholders of the Company and any of its
Subsidiaries under the laws of the State of Delaware shall be determined through
a majority vote in accordance with the DGCL. In no event will the Company or any
of its Subsidiaries take any of the following actions without the prior written
approval of each of MacKay ▇▇▇▇▇▇▇, ▇▇-III and TCW, provided that MacKay
▇▇▇▇▇▇▇, ▇▇-III or TCW have the Minimum MacKay ▇▇▇▇▇▇▇ Ownership, the Minimum
CM-III Ownership or the Minimum TCW Ownership, as the case may be:
(a) except as provided under Section 3.3 hereof, a Sale
of the Company;
(b) any amendment to the charter or by-laws of the
Company or any of its Subsidiaries;
(c) any increase or decrease in the number of directors
on the board of directors of the Company or any of its Subsidiaries;
and
(d) any transaction between the Company and any of its
Subsidiaries, on the one hand, and any stockholder, director of officer
of the Company (or any Subsidiary, Affiliate, director or officer of
any of such persons), on the other hand, having a value in excess of
8
$100,000, other than customary transactions with any Management
Stockholders in connection with customary employment agreements.
2.5 Other Activities of the Holders; Fiduciary Duties. It is
understood and accepted that the Holders and their Affiliates have interests in
other business ventures that may be in conflict with the activities of the
Company and its Subsidiaries and that, subject to applicable law and any other
agreement that may be executed by any such Stockholder, nothing in this
Agreement shall limit the current or future business activities of the Holders
whether or not such activities are competitive with those of the Company and its
Subsidiaries. Nothing in this Agreement, express or implied, shall relieve any
officer or director of the Company, or any of its Subsidiaries, or any
Stockholder, of any fiduciary or other duties or obligations they may have to
the stockholders of the Company.
ARTICLE III
TRANSFERS OF SECURITIES
3.1 Preemptive Rights.
(a) Applicability; Offer Notice. Prior to a Qualified
Public Offering, if the Company proposes to issue or sell to any person
(the "Proposed Purchaser") any Common Stock or any Common Stock
Equivalents (collectively, the "Offered Securities"), the Company
shall, no later than 30 days prior to the consummation of such
transaction (a "Preemptive Rights Transaction"), give written notice
(the "Offer Notice") to each Management Stockholder and each 5%
Stockholder of the proposed Preemptive Rights Transaction. The Offer
Notice shall (i) describe the proposed Preemptive Rights Transaction,
(ii) identify the Proposed Purchaser, and (iii) contain an offer (the
"Preemptive Rights Offer") to sell to each such Management Stockholder
or 5% Stockholder who certifies (to the reasonable satisfaction of the
Company) that such holder is an Accredited Investor (an "Accredited
Offeree"), at the same price and for the same consideration to be paid
by the Proposed Purchaser, all or part of such Accredited Offeree's pro
rata portion of the Offered Securities (which shall be the percentage
ownership of the Common Stock on a fully diluted basis Beneficially
Owned by such holder, excluding, for the purposes of such calculation,
any shares of Common Stock issuable upon exercise of any Common Stock
Equivalents granted pursuant to any employee, officer, or director
benefit plan or arrangement). In the event of any sale or sales of
Offered Securities to one or more Accredited Investors, the number of
Offered Shares which may be sold to the Proposed Purchaser shall be
such number as was set forth in the Offer Notice minus the aggregate
number of Offered Shares so sold to Accredited Investors. If any
Management Stockholder or 5% Stockholder fails to accept such offer by
written notice to the Company 15 days after its receipt of the Offer
Notice, then the Company may proceed with the issue or sale of the
Offered Securities described in the Offer Notice (but subject to the
provisions of the preceding sentence hereof) free of any right on the
part of such Management Stockholder or 5% Stockholder under this
Section 3.1(a) in respect thereof.
(b) Exceptions to Preemptive Rights. Section 3.1(a) shall
not apply to issuances or sales of Common Stock or Common Stock
Equivalents (i) pursuant to the Management Compensation Plans, (ii)
upon exercise of any Common Stock Equivalent that, when issued, was
subject to or exempt from the preemptive rights under Section 3.1(a),
(iii) to providers of financing to the Company or any of its
Subsidiaries where such issuance or sale is, in whole or in part, made
as consideration for such financing (e.g., as an "equity kicker" in
such financing) and (iv) to third-party sellers (who are not Affiliates
of the Company) in connection with acquisitions made by the Company or
any of its Subsidiaries.
9
(c) Units. If any issuances or sales of any class of
Common Stock or Common Stock Equivalents are made as a unit with any
other security of the Company or its Subsidiaries, the preemptive
rights under Section 3.1(a) shall be applicable to the entire unit
rather than only the Common Stock or Common Stock Equivalent included
in the unit.
3.2 Right of First Offer.
(a) Applicability; Transferor's Notice. Prior to a
Qualified Public Offering and so long as MacKay ▇▇▇▇▇▇▇ has the Minimum
MacKay ▇▇▇▇▇▇▇ Ownership, CM-III has the Minimum CM-III Ownership or
TCW has the Minimum TCW Ownership (unless waived by each of MacKay
▇▇▇▇▇▇▇, ▇▇-III and TCW, as hereinafter provided), if a Right of First
Offer Selling Stockholder (each, a "Transferor") desires to Transfer (a
"Right of First Offer Proposed Transfer") for value any shares of
Common Stock or New Warrants (for purposes of this Article III, and
individually or collectively, "Shares") to any person (other than by
Registered Sale or Permitted Transfer), the Transferor shall give
written notice (the "Transfer Notice") to the Company and the 5%
Stockholders (the "Option Holders") of such Right of First Offer
Proposed Transfer. The Transfer Notice shall (i) specify the number of
shares of Common Stock and New Warrants to be transferred, the
consideration to be received therefor, and the other material terms on
which the Transferor proposes to Transfer the shares of Common Stock
and New Warrants and (ii) contain the offer described in Section
3.2(b).
(b) Option Offers.
(i) The Transferor shall offer to sell (the
"First Option") all such shares to the Company for the same
consideration as specified in the Transfer Notice, consisting
of (A) cash equal to the amount of cash and (B) if applicable,
non-cash consideration (other than consideration having a fair
market value equal to the fair market value of such non-cash
consideration) specified in the Transfer Notice. The decision
whether or not the Company will accept the First Option shall
be made by the Board of Directors and the Company shall give
the Transferor written notice of such determination on or
prior to the tenth Business Day (the "Election Period") after
receipt of the Transfer Notice. If the Company (A) fails to
notify the Transferor in writing on or prior to the tenth
Business Day after receipt of the Transfer Notice that it
elects to accept the First Option or (B) by written notice
within such ten-day period rejects the First Option in whole
or part, then the Transferor shall offer to sell (the "Second
Option") the Shares not so purchased to the other Option
Holders for the same consideration; provided, however, that
the Transferor shall not be obligated to offer such Shares to
any Holder who is not an Accredited Investor.
(ii) The other Option Holders may purchase the
Shares so offered in proportion to the number of shares of
Common Stock on a fully-diluted basis Beneficially Owned by
each such Option Holder who desires to participate in the
purchase of such Shares pursuant to the Second Option bears to
the aggregate number of shares of Common Stock on a
fully-diluted basis Beneficially Owned by all such Option
Holders who desire to participate in the purchase of such
Shares pursuant to the Second Option.
(iii) If the First Option and/or the Second
Option, as the case may be, is accepted in a manner such that
all Shares covered by the Transfer Notice are to be purchased,
the Transferor shall Transfer all such shares (free of all
liens and encumbrances except this Agreement, all as
reasonably determined by the Company) to
10
the respective purchasers thereof within 15 Business Days
following the receipt by the Option Holders of the Transfer
Notice against delivery by the purchaser(s) of the
consideration payable to the Transferor as set forth in the
Transfer Notice; provided, however, that if the HSR Act is
applicable to the First Option or the Second Option, such date
shall be extended to the date that is five Business Days after
the date the applicable HSR Act waiting period expires or is
terminated.
(iv) Unless, through exercise of the First Option
and/or Second Option, all the Shares proposed to be
Transferred in the Transfer Notice are to be acquired by the
Company and/or one or more other Option Holders, the
Transferor shall be permitted to transfer the Shares on the
terms set forth in the Transfer Notice (with no additional
terms more favorable to the transferee than those offered to
the Option Holders, including, without limitation, at a price
no less than the price offered to the Option Holders);
provided, however, that such Transfer shall occur no later
than 180 days following the Election Period or five days after
the expiration or termination of any waiting period applicable
to the transfer pursuant to the HSR Act, whichever is later,
on the terms set forth in the Transfer Notice. If such
Transfer does not occur within such 180-day period, or such
five-day period after the expiration or termination of any HSR
Act waiting period, then the Shares shall be re-offered
(without obligation to purchase) to the Company and the other
Option Holders under this Section 3.2 prior to any subsequent
Transfer pursuant to the terms of this Section 3.2.
(c) The provisions of this Section 3.2 shall be subject
to the terms and conditions of the second paragraph of Section 3.4(a).
3.3 Drag Along Rights.
(a) Applicability. The Board of Directors of the Company
by a Special Director Vote shall have the right, prior to the
occurrence of a Qualified Public Offering, to cause a sale of the
Company or any of its Subsidiaries through a sale of shares of Common
Stock and/or Common Stock Equivalents, merger, recapitalization, sale
of substantially all of the assets of the Company and its Subsidiaries,
taken as a whole, or other similar transaction (a "Sale of the
Company"), and to cause all Stockholders to consent to, approve and
participate in a Sale of the Company; provided, however, that (i) all
Stockholders receive the same consideration on a per share basis, (ii)
the identity of such purchaser is approved (which approval shall not be
unreasonably withheld) by MacKay ▇▇▇▇▇▇▇, ▇▇-III and TCW; provided that
MacKay ▇▇▇▇▇▇▇ has the Minimum MacKay ▇▇▇▇▇▇▇ Ownership, CM-III has the
Minimum CM-III Ownership and TCW has the Minimum TCW Ownership, as the
case may be, and (iii) such purchaser is not MacKay ▇▇▇▇▇▇▇, ▇▇-III or
TCW or any 5% Stockholder or any Affiliate of the foregoing.
(b) Notice of Sale of the Company. The Board of
Directors, on behalf of the Company, shall give the Stockholder at
least 30 days' prior written notice of any such proposed Sale of the
Company. If the Board of Directors elects to cause a Sale of the
Company under this Section 3.3, the Stockholders shall take such
actions as may be reasonably required and otherwise cooperate in good
faith with the Board of Directors in connection with consummating the
Sale of the Company (including, without limitation, the voting of any
Common Stock, Common Stock Equivalents or other voting capital stock of
the Company to approve such Sale of the Company). At the closing of
such Sale of the Company, each Stockholder shall deliver certificates
for all shares of Common Stock and all Common Stock Equivalents to be
sold by such Stockholder, duly endorsed for transfer, with the
signature guaranteed, to the purchaser against payment of the
appropriate purchase price.
11
3.4 Tag Along Rights.
(a) Applicability. Prior to a Qualified Public Offering,
but other than with respect to a Registered Sale, and so long as MacKay
▇▇▇▇▇▇▇ has the Minimum MacKay ▇▇▇▇▇▇▇ Ownership, CM-III has the
Minimum CM-III Ownership or TCW has the Minimum TCW Ownership, if any
5% Stockholder (a "Tag-Along Selling Stockholder") desires to effect a
sale of Shares (other than a Permitted Transfer) (a "Tag-Along
Transaction"), then at least 30 days prior to the closing of such
Tag-Along Transaction, the Tag-Along Selling Stockholder shall make an
offer (the "Participation Offer") to each other 5% Stockholder
(together with the Permitted Transferees of such stockholder, the
"Tag-Along Participating Stockholders") to include in the proposed
Tag-Along Transaction a number of Shares equal to the product of (i)
the quotient determined by dividing the percentage of Shares (as
determined on a fully-diluted basis) owned by the Tag-Along
Participating Stockholder, by the aggregate percentage of Shares (as
determined on a fully-diluted basis) owned by all Tag-Along
Participating Stockholders and all Tag-Along Selling Stockholders in
such sale, times (iii) the number of Shares proposed to be sold by the
Tag-Along Selling Stockholder; provided, however, that if the
consideration to be received by the Tag-Along Participating
Stockholders includes any securities, only Tag-Along Participating
Stockholders who have certified to the reasonable satisfaction of the
Company that they are Accredited Investors shall be entitled to
participate in such Transfer, unless the transferee consents otherwise.
The Tag-Along Participating Stockholders shall give the Tag-Along
Selling Stockholder written notice of their intent to participate in
such Tag-Along Transaction on or prior to the tenth Business Day after
receipt of the Participation Offer.
Solely for purposes of determining whether Metropolitan Life
Insurance Company ("MetLife") may be treated as a Tag-Along
Participating Stockholder, MetLife shall be deemed to be the Beneficial
Owner also of the Shares Beneficially Owned by TCW; provided, however,
that any pro rata participation of MetLife in any Tag-Along Transaction
or in any Right of First Offer Proposed Transfer shall be based solely
on the amount of shares of Common Stock of which MetLife shall be the
Beneficial Owner (and shall not include, and shall not be duplicative
with, any shares of Common Stock of which TCW is the Beneficial Owner);
provided, further, however, that for purposes of determining any pro
rata participation of any other Stockholder in any Tag-Along
Transaction or Right of First Offer Proposed Transfer where Shares are
Beneficially Owned by more than one person or entity, such pro rata
participation shall be determined without duplication of Beneficial
Ownership.
(b) Participation Offer. The Participation Offer shall
describe the terms and conditions of the proposed Tag-Along Transaction
and shall be conditioned upon (i) the consummation of the transactions
contemplated in the Participation Offer with the transferee named
therein, and (ii) each Tag-Along Participating Stockholders' execution
and delivery of all agreements and other documents as the Tag-Along
Selling Stockholders are required to execute and deliver in connection
with such Tag-Along Transaction; provided, however, that the Tag-Along
Participating Stockholders shall not be required to make any
representations or warranties with respect to other Tag-Along
Participating Stockholders as to (A) such other Tag-Along Participating
Stockholders' ownership of their Shares to be sold or transferred, (B)
such other Tag-Along Participating Stockholders' power and authority to
effect such transfer, and (C) matters pertaining to compliance with
securities laws by other Tag-Along Participating Stockholders. If any
Tag-Along Participating Stockholder accepts the Participation Offer,
the Tag-Along Selling Stockholder shall reduce, to the extent
necessary, the number of Shares it otherwise would have sold in the
proposed transfer so as to permit those Tag-Along Participating
Stockholders who have accepted the Participation Offer to sell the
number of Shares that they are entitled to sell under this Section 3.4,
and the Tag-Along Selling Stockholder and such Tag-Along
12
Participating Stockholders shall transfer the number of Shares
specified in the Participation Offer to the proposed transferee in
accordance with the terms of such transfer set forth in the
Participation Offer.
3.5 Certain Events Not Deemed Transfers. Sections 3.2, 3.3 and 3.4
shall not apply with respect to any Permitted Transfers.
3.6 Transfer and Exchange. When Securities are presented to the
Company with a request to register the transfer of such Securities or to
exchange such Securities for Securities of other authorized denominations, the
Company shall register the transfer or make the exchange as requested if the
requirements of this Agreement for such transaction are met; provided, however,
that the Securities surrendered for transfer or exchange shall be duly endorsed
or accompanied by a written instrument of transfer in form reasonably
satisfactory to the Company, duly executed by the holder thereof or its attorney
and duly authorized in writing. No service charge shall be made for any
registration of transfer or exchange, but the Company, may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith.
3.7 Replacement Securities. If a mutilated Security is surrendered
to the Company or if the holder of a Security claims and submits an affidavit or
other evidence, reasonably satisfactory to the Company, to the effect that the
Security has been lost, destroyed, or wrongfully taken, the Company shall issue
a replacement Security if the Company's requirements are met. If required by the
Company, such holder must provide an indemnity bond, or other form of indemnity,
sufficient in the judgment of the Company to protect the Company against any
loss that may be suffered. The Company may charge such holder for its reasonable
out-of-pocket expenses in replacing a Security that has been mutilated, lost,
destroyed, or wrongfully taken.
ARTICLE IV
LIMITATION ON TRANSFERS
4.1 Restrictions on Transfer. No Securities shall be Transferred
before satisfaction of (i) the conditions specified in Sections 4.1, 4.2, and
4.3, which conditions are intended to ensure compliance with the provisions of
the Securities Act in respect of the Transfer of any Security and (ii) if
applicable, Article III. No such Transfer shall result in the Company being
subject to registration pursuant to the Investment Company Act of 1940, as
amended.
Any purported Transfer in violation of this Article IV and/or, if
applicable, Article III shall be void ab initio and of no force or effect other
than Transfers subject to and in compliance with Sections 3.2, 3.3, and 3.4 and
other than Transfers to the public pursuant to an effective registration
statement or Transfers to the public pursuant to Rule 144 under the Securities
Act otherwise permitted hereunder. Each Stockholder will cause any proposed
transferee (including Permitted Transferees) of any Security or any interest
therein held by it to agree to take and hold such securities subject to the
provisions and upon the conditions specified in this Agreement.
4.2 Restrictive Legends.
(a) Securities Act Legend. Except as otherwise provided
in Section 4.4, each Security held by a Stockholder, and each Security
issued to any subsequent transferee of such Security, shall bear a
legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933,
13
AS AMENDED, NOR PURSUANT TO THE SECURITIES OR "BLUE SKY" LAWS
OF ANY STATE. SUCH SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED, OR OTHERWISE ASSIGNED,
EXCEPT PURSUANT TO (i) A REGISTRATION STATEMENT IN RESPECT OF
SUCH SECURITIES THAT IS EFFECTIVE UNDER SUCH ACT, (ii) RULE
144 UNDER SUCH ACT, OR (iii) ANY OTHER EXEMPTION FROM
REGISTRATION UNDER SUCH ACT.
(b) Other Legends. Each Security held by a Stockholder,
and each Security issued to any subsequent transferee of such Security,
shall bear a legend in substantially the following form:
THIS SECURITY IS SUBJECT TO RESTRICTIONS ON TRANSFER, VOTING,
AND OTHER TERMS AND CONDITIONS SET FORTH IN THE STOCKHOLDERS
AGREEMENT DATED AS OF OCTOBER [ ], 2003, A COPY OF WHICH MAY
BE OBTAINED FROM THE COMPANY AT ITS PRINCIPAL EXECUTIVE
OFFICES.
4.3 Notice of Proposed Transfers. Prior to any Transfer or
attempted Transfer of any Security by any 5% Stockholder (other than Transfers
subject to Sections 3.2, 3.3, or 3.4 or Transfers described in Section 3.5 or
Transfers pursuant to a Registered Sale), such 5% Stockholder shall (i) give ten
days' prior written notice to the Company of such holder's intention to effect
such Transfer, describing the manner and circumstances of the proposed Transfer,
and (ii) either (A) provide to the Company an opinion reasonably satisfactory to
the Company from counsel who shall be reasonably satisfactory to the Company (or
supply such other evidence reasonably satisfactory to the Company) that the
proposed Transfer of such Security may be effected without registration under
the Securities Act, or (B) certify to the Company that the holder reasonably
believes the proposed transferee is a "qualified institutional buyer" and that
such holder has taken reasonable steps to make the proposed transferee aware
that such holder may rely on Rule 144A under the Securities Act in effecting
such Transfer. After receipt of the notice of Transfer and opinion (if
required), the Company shall, within five days thereafter, so notify the holder
of such Security and such holder shall thereupon be entitled to Transfer such
Security in accordance with the terms of the notice. Each Security issued upon
such Transfer shall bear the restrictive legend set forth in Section 4.2(a),
unless in the opinion of such counsel such legend is not required in order to
ensure compliance with the Securities Act. The holder of the Security giving the
notice of Transfer shall not be entitled to Transfer such Security until receipt
of the notice from the Company under this Section 4.3.
4.4 Termination of Certain Restrictions. Notwithstanding the
foregoing provisions of this Article IV, the restrictions imposed by Section
4.2(a) upon the transferability of the Securities and the legend requirements of
Section 4.2(a) shall terminate as to any Security (i) when and so long as such
Security shall have been effectively registered under the Securities Act and
disposed of pursuant thereto or (ii) when the Company shall have received an
opinion of counsel reasonably satisfactory to it that such Security may be
transferred without registration thereof under the Securities Act and that such
legend may be removed. Whenever the restrictions imposed by Section 4.2(a) shall
terminate as to any Security, the holder thereof shall be entitled to receive
from the Company, at the Company's expense, a new Security not bearing the
restrictive legend set forth in Section 4.2(a).
14
ARTICLE V
MISCELLANEOUS
5.1 Counterparts. This Agreement may be executed in multiple
counterparts, each of which when so executed and delivered shall be an original,
and all of which when taken together shall constitute one and the same
instrument.
5.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ANY CHOICE OF LAW OR THE CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE
THE APPLICATION OF THE INTERNAL LAWS OF ANY STATE OTHER THAN THE STATE OF NEW
YORK.
5.3 Notices. Any notice, request, demand, or other communication
required or permitted to be given hereunder by any party hereto to any other
party shall be in writing and delivered (i) in person, (ii) by a nationally
recognized overnight courier service requiring acknowledgment of receipt of
delivery, (iii) by United States certified or registered mail, postage prepaid
and return receipt requested, or (iv) by facsimile, as follows:
If to the Company, to:
ACP Holding Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to (which shall not constitute notice):
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
Citigroup Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
If to any Stockholder, to:
such Stockholder's address or facsimile number set forth
in the records of the Company or any Transfer Agent
thereof.
Notice shall be deemed given, received, and effective on: (i) if given
by personal delivery or courier service, the date of actual receipt by the
receiving party, or if delivery is refused on the date delivery was first
attempted; (ii) if given by certified or registered mail, the third day after
being so mailed if posted with the United States Postal Service; and (iii) if
given by facsimile, the date on which the facsimile is transmitted if confirmed
by transmission report during the transmitter's normal business hours, or at the
beginning of the next Business Day after transmission if confirmed at any time
other than the transmitter's normal business hours. Any person entitled to
notice may change any address or facsimile number to which notice is to be given
to it by giving notice of such change of address or facsimile number as provided
in this Section 5.3. The inability to deliver notice because of changed address
or facsimile number of which no notice was given shall be deemed to be receipt
of the notice as
15
of the date such attempt was first made. Notwithstanding any other provision of
this Section 5.3 to the contrary, any notice given in a manner other than as
provided in this Agreement, that is actually received, shall be effective in
respect of the recipient on receipt of such notice. Failure to send a notice to
any person or any defect in any notice shall not affect its sufficiency in
respect of any other person.
5.4 Severability. In case any provision in this Agreement shall be
held invalid, illegal, or unenforceable in any respect for any reason, the
validity, legality, and enforceability of any such provision in every other
respect and the remaining provisions shall not in any way be affected or
impaired thereby.
5.5 Successors and Assigns. Whether or not an express assignment
has been made pursuant to the provisions of this Agreement, provisions of this
Agreement that are for the Holders' benefit as the holders of any Securities are
also for the benefit of, and enforceable by, all subsequent holders of
Securities, except as otherwise expressly provided herein. This Agreement shall
be binding upon the Company, each Stockholder, and their respective successors
and assigns.
5.6 Termination. The provisions of this Agreement shall terminate
on the date that no Standby Purchaser owns any shares of Common Stock or any New
Warrants; provided, however, that Sections 3.1, 3.2, 3.3 and 3.4 shall terminate
upon the consummation of a Qualified Public Offering.
5.7 No Waivers; Amendments.
(a) No failure or delay on the part of the Company or any
Stockholder in exercising any right, power, or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise
of any such right, power, or remedy preclude any other or further
exercise thereof or the exercise of any other right, power, or remedy.
The remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to the Company or any Stockholder
at law, in equity, or otherwise.
(b) Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and
signed by (i) the Company, (ii) the holders of a majority of the
aggregate number of shares of Common Stock on a fully-diluted basis
owned by the Stockholders who are parties to this Agreement and (iii)
each of MacKay ▇▇▇▇▇▇▇, ▇▇-III and TCW so long as such person holds the
Minimum MacKay ▇▇▇▇▇▇▇ Ownership, the Minimum CM-III Ownership or the
Minimum TCW Ownership, as the case may be; provided, however, that no
such amendment or waiver shall, unless signed by all of the
Stockholders affected, (i) amend this Section 5.7(b) or (ii) change the
number of Stockholders that shall be required for the Stockholders or
any of them to take any action under this Section 5.7(b) or any other
provision of this Agreement.
*****
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
THE COMPANY:
ACP HOLDING COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
MANAGEMENT STOCKHOLDERS AND DIRECTORS:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President, Chief Executive Officer
and Director of ACP Holding Company
and each of its subsidiaries
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. LaChey
Title: Vice President--Finance, Treasurer,
Secretary and Chief Financial Officer
of ACP Holding Company and each
of its subsidiaries
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Division President, ▇▇▇▇▇▇ Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President--Marketing and
Technology, Neenah Foundry Company
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President--Construction Product
Sales, Neenah Foundry Company
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President -- International Development,
Neenah Foundry Company
By: /s/ ▇▇▇▇▇▇ Varkaly
------------------------------------------------
Name: ▇▇▇▇▇▇ Varkaly
Title: Vice President -- Business Development,
ACP Holding Company
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President -- Human Resources,
▇▇▇▇▇▇ Corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President -- Manufacturing,
Neenah Foundry Company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director of ACP Holding Company
and each of its subsidiaries
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Duster
------------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Duster, IV, Esq.
Title: Director of ACP Holding Company
and each of its subsidiaries
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director of ACP Holding Company
and each of its subsidiaries
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director of ACP Holding Company
and each of its subsidiaries
STANDBY PURCHASERS:
MACKAY ▇▇▇▇▇▇▇ LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇ III
-------------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇ III
Title: Senior Managing Director
Address:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CITICORP MEZZANINE III, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
TRUST COMPANY OF THE WEST
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW INVESTMENT MANAGEMENT COMPANY,
Its Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Address:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
SHARED OPPORTUNITY FUND IIB LLC
By: TCW ASSET MANAGEMENT COMPANY,
Its Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Address:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
TCW SHARED OPPORTUNITY FUND IV, L.P.
TCW SHARED OPPORTUNITY FUND IVB, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
Its Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Address:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
AIMCO CDO, SERIES 2000-A
By: ALLSTATE INVESTMENT MANAGEMENT COMPANY,
Its Collateral Manager
By: TCW ASSET MANAGEMENT COMPANY,
Its Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Address:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
TCW HIGH INCOME PARTNERS, LTD.
By: TCW ASSET MANAGEMENT COMPANY,
Its Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Address:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
TCW HIGH INCOME PARTNERS II, LTD.
By: TCW ASSET MANAGEMENT COMPANY,
Its Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Address:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Address:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
EXIS DIFFERENTIAL HOLDINGS, LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: /s/ ▇▇▇▇▇ ▇▇▇▇
Title: Portfolio Manager
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇