Exhibit 10.8
FIRST AMENDMENT TO THE
SHAREHOLDERS AGREEMENT
This FIRST AMENDMENT TO THE SHAREHOLDERS AGREEMENT is dated as of
March 29, 2001 (the "Amendment") 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 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, in connection with the Refinancing Implementation Agreement,
dated as of March 29, 2001, by and among the Company and the other parties
thereto (the "Implementation Agreement"), the Company and the other parties
hereto have agreed to amend the Shareholders Agreement (as in effect immediately
prior to the date hereof) on the terms and conditions set forth herein.
WHEREAS, the Company and the Direct Investors (as defined below in
Section 1.2), including any Direct Investors who are not already a party to the
Shareholders Agreement, desire to enter into this Amendment in order to add such
Direct Investors as parties to the Shareholders Agreement and to set forth their
understanding with respect to certain voting arrangements and other matters
relating to the Direct Investors' direct and indirect ownership of shares of
Common Stock, and to acknowledge that any shares acquired by the Direct
Investors upon exercise or conversion of any securities acquired by them
pursuant to the Implementation Agreement are subject to, and governed by, the
Shareholders Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations set forth in this Amendment, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS
SECTION 1.1 REQUISITE APPROVAL. In all circumstances in the
Shareholders Agreement that either (i) require the affirmative vote of the
Windward Group or the Windward Agent, as agent for the Windward Group, or (ii)
give the Windward Group or the Windward Agent, as agent for the Windward Group,
the right to take any unilateral action, the Shareholders Agreement shall hereby
be amended, MUTATIS MUTANDIS, such that in lieu of any such vote or action being
taken by the Windward Group or the Windward Agent, as agent for the Windward
Group, as the case may be, any such vote or action shall first require the prior
consent or approval of the Requisite Approval (as defined below) including,
without limitation, (i) any and all actions taken by the Windward Group and the
Windward Agent in connection with the exercise by the Windward Group of its
Compelled Sale Right pursuant to Article V of the Shareholders Agreement, (ii)
any and all actions taken by the Windward Group and the Windward Agent in
connection with the exercise by the Windward Group or the Windward Agent of the
right to effect any IPO Event pursuant to Section 5.6 of the Shareholders
Agreement (notwithstanding any provision in Section 5.6 to the contrary), (iii)
the consent of the
Windward Agent pursuant to Section 8.2 of the Shareholders Agreement, and (iv)
the right of the Windward Agent, on behalf of the Windward Registration Group,
to request Registration of the Company Stock pursuant to Section 9.1(c)(i) of
the Shareholders Agreement.
SECTION 1.2 AMENDMENT TO SECTION 1.1. Section 1.1 of the Shareholders
Agreement is hereby amended by adding therein the following definitions:
"BancAmerica" means BancAmerica Capital Investors II, L.P., a
Delaware limited partnership, and any Permitted Transferee (other than
Persons who directly or indirectly hold Common Stock on the date hereof
and their Affiliates, but not excluding Affiliates of BancAmerica
Capital Investors II, L.P.) of BancAmerica Capital Investors II, L.P.
who acquires 66% of the Common Stock held directly or indirectly by
BancAmerica Capital Investors II, L.P. on the date hereof.
"CDPQ" means Capital d'Amerique CDPQ, Inc., a Quebec
corporation, and any Permitted Transferee (other than Persons who
directly or indirectly hold Common Stock on the date hereof and their
Affiliates, but not excluding Affiliates of Capital d'Amerique CDPQ
Inc.) of Capital d'Amerique CDPQ, Inc. who acquires 66% of the Common
Stock held directly or indirectly by Capital d'Amerique CDPQ, Inc. on
the date hereof.
"CSFB" means any and all of Merchant Capital, Inc., a Delaware
corporation, Credit Suisse First Boston Private Equity, a corporation
organized under the laws of the canton of Zug, Switzerland, and any
Permitted Transferee (other than Persons who directly or indirectly
hold Common Stock on the date hereof and their Affiliates, but not
excluding Affiliates of Merchant Capital, Inc. or Credit Suisse First
Boston Private Equity) of Merchant Capital, Inc. or Credit Suisse First
Boston Private Equity who acquires 66% of the Common Stock
collectively held directly or indirectly by Merchant Capital, Inc. and
Credit Suisse First Boston Private Equity on the date hereof.
"Direct Investors" means, collectively, BancAmerica, CDPQ,
CSFB, and Indosuez.
"Indosuez" means any and all of Suez Capital Partners II,
L.P., a Delaware limited partnership, SCP II Associates, a Delaware
general partnership, Indosuez Capital Co-Invest Partners, L.P., a
Delaware limited partnership, Suez/Meridian, L.L.C., a Delaware limited
liability company, and any Permitted Transferee (other than Persons who
directly or indirectly hold Common Stock on the date hereof and their
Affiliates, but not excluding Affiliates of Suez Capital Partners II,
L.P., SCP II Associates, Indosuez Capital Co-Invest Partners, L.P. or
Suez/Meridian, L.L.C.) of Suez Capital Partners II, L.P., SCP II
Associates, Indosuez Capital Co-Invest Partners, L.P., or
Suez/Meridian, L.L.C., who acquires 66% of the Common Stock
collectively held directly or indirectly by Suez Capital Partners II,
L.P., SCP II Associates, Indosuez Capital Co-Invest Partners, L.P., and
Suez/Meridian, L.L.C. on the date hereof.
"Requisite Approval" means the vote, approval, or consent of
the Shareholders entitled to vote at least 66% of the outstanding
Common Stock of the Company; PROVIDED, that such vote, approval, or
consent must include the vote, approval, or consent
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of at least two Direct Investors for so long as at least three Direct
Investors hold any Company Stock, and must include the vote, approval
or consent of at least one Direct Investor if only two Direct
Investors hold any Company Stock.
SECTION 1.3 INSERTION OF SECTION 8.3 AND SECTION 8.4. The Shareholders
Agreement is hereby amended by inserting in the following new Sections 8.3 and
8.4 therein:
8.3 COMPANY COVENANTS. The Company agrees that it will not,
without first obtaining the Requisite Approval, take any of the
following actions:
(a) hire, fire, remove or replace any senior
executive of the Company;
(b) effect any IPO Event;
(c) engage in any merger, consolidation or sale of
the Company or the sale of all or substantially all of its
assets;
(d) sell, lease, mortgage, encumber of otherwise
dispose of a material portion of the assets of the Company and
its subsidiaries taken as a whole, other than as may be
required under the Credit Agreement (as defined in the
Implementation Agreement) or the Amended Subordinated Note
Agreement (as defined in the Implementation Agreement);
(e) purchase any equity interest in, or any of the
assets of, any Person or other business organization or any
division or business thereof, if such purchase would be
material to the Company and its subsidiaries taken as a whole;
PROVIDED, HOWEVER, that this Section 8.3(e) shall not prohibit
the Company from purchasing inventory in the ordinary course
of business;
(f) set aside or issue employee stock options or
other equity based compensation that, in the aggregate,
constitute greater than 7% of the total outstanding shares of
Common Stock of the Company, on a fully diluted basis (with 2%
of such 7% being reserved for new hires) (it being understood
that this clause (f) shall not apply to issuances of
securities to Subsequent Purchasers pursuant to the
Implementation Agreement); and
(g) enter into any agreement, contract, commitment
or arrangement that if completed would be in contravention of
any of the foregoing.
SECTION 8.4 PREEMPTIVE RIGHTS. (a) The Company hereby grants
to each Shareholder (and their respective Permitted Transferees) (each,
a "Preempting Holder) a right of first refusal to purchase, with
respect to the issuance or sale by the Company of any equity securities
or any securities containing options, warrants or other rights to
acquire or convert into equity securities, that portion of such equity
securities in order to permit such Shareholder to maintain its relative
ownership of the aggregate amount of the Company's total common equity
(assuming the conversion or exercise of all securities that are
convertible or exercisable into Common Stock and calculated on a
Fully-Diluted Basis). Such right of first refusal shall be offered to
each Preempting Holder (such offer,
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the "Preemptive Rights Offer") pursuant to a written notice from the
Company offering each Preempting Holder such securities and describing
in reasonable detail the securities being offered, the purchase price
thereof, the payment terms and such Preempting Holder's percentage
allotment (such written notice, the "Preemptive Rights Notice") and
such Preempting Holder shall be permitted to purchase such equity
securities at the most favorable price and terms as such equity
securities are to be offered to any other offeree. Each Preempting
Holder would have 15 days from the date of the Company's delivery of
the Preemptive Rights Notice to notify the Company in writing of its
binding acceptance of such Preemptive Rights Offer with respect to all
(but not less than all) equity securities that are offered to such
Preempting Holder pursuant to such Preemptive Rights Offer.
(b) If a Preempting Holder accepts the Preemptive
Rights Offer in accordance with the provisions of the
preceding paragraph, the Company and any such accepting party
shall have 10 days thereafter in which to consummate such
binding agreement. In the event that a Preempting Holder does
not accept the Preemptive Rights Offer within such 15-day
period in accordance with the provisions of the preceding
paragraph or fails to consummate any such purchase within such
10-day period, the Company would have the right, but not the
obligation, to issue such securities on terms and conditions
in the aggregate no more favorable to the other offeree(s)
than those set forth in the Preemptive Rights Notice, pursuant
to a definitive agreement to be entered into no later than 60
days after such date. Any securities offered or sold by the
Company after such 60 day period must be reoffered to the
Shareholders pursuant to this Section 8.4.
(c) Notwithstanding anything to the contrary
contained herein, no rights of first refusal pursuant to
Section 8.4(a) above would apply in the event of (i) the
exercise or exchange of any warrants, options or other rights
to purchase Common Stock or any other capital stock of the
Company, or the conversion or exchange of any convertible or
exchangeable securities of the Company, in each case issued or
granted on or prior to the date hereof or issued pursuant to
the Amended Subordinated Note Agreement (as defined in the
Implementation Agreement) or the Implementation Agreement,
including, without limitation, the Warrants and the ▇▇▇▇▇
Warrants (each as defined in the Implementation Agreement),
and (ii) the issuance of shares of Common Stock to the
directors, officers or employees of the Company, or the
granting of options, stock appreciation rights or similar
rights to such persons with respect thereto, pursuant to any
bona fide management compensation plan or arrangement of the
Company or any of its subsidiaries, which, in the aggregate,
constitute less than 7% of the total outstanding shares of
Common Stock of the Company on a Fully Diluted Basis (with 2%
of such 7% being reserved for new hires).
SECTION 1.4 IRREVOCABLE PROXIES OF CERTAIN MEMBERS OF THE WINDWARD
GROUP. Simultaneously with the execution of and pursuant to this Amendment,
certain members of the Windward Group are executing irrevocable proxies (as
attached at Exhibit A hereto) with respect to the voting, sale, transfer and
disposition of the shares (and similar or related rights) held by them,
including, without limitation, requesting a special meeting of the shareholders,
the
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designation and election of directors, and the exercise of any and all other
rights under the Shareholders Agreement, as amended. Windward/BACI, L.L.C.
hereby designates BancAmerica Capital Investors II, L.P. as the recipient of its
irrevocable proxy, and agrees to use its best efforts and to take all actions
necessary to maintain the validity of such proxy (including, without limitation,
re-executing such proxy upon its termination for any reason). Windward/Quebec,
L.L.C. and Windward/Quebec ▇▇ ▇▇, L.L.C. hereby designate Capital d'Amerique
CDPQ Inc. as the recipient of their irrevocable proxy, and agree to use their
best efforts and to take all actions necessary to maintain the validity of such
proxy (including, without limitation, re-executing such proxy upon its
termination for any reason). Windward/Merchant, L.P. and Windward/Merban, L.P.
hereby designate Credit Suisse First Boston Private Equity as the recipient of
their irrevocable proxy, and agree to use their best efforts and to take all
actions necessary to maintain the validity of such proxy (including, without
limitation, re-executing such proxy upon its termination for any reason).
The parties hereto agree that this Amendment hereby amends the
Shareholder Agreement (and any and all Supplemental Shareholders Agreements
between the Company and each of the Direct Investors) such that any provisions
providing for the granting of proxies or the appointment of agents contained in
the Shareholders Agreement are hereby amended and deleted (and such proxies and
agencies are hereby revoked, terminated, and surrendered) to the extent that any
such granting of proxies or appointment of agents relates in any way to the
Direct Investors or to any shares of Company Stock held directly or indirectly
by the Direct Investors and to the extent necessary to give full effect to the
irrevocable proxies being granted concurrently herewith. For the avoidance of
doubt and without limiting the generality of the preceding sentence, (i) Section
2.7 of the Shareholders Agreement shall not apply, in any way, to the Direct
Investors or to any shares of Company Stock held directly or indirectly by the
Direct Investors, and (ii) Section 12.1(a) through (d) of the Shareholders
Agreement shall not apply to the Direct Investors or to any shares of Company
Stock held directly or indirectly by the Direct Investors; PROVIDED, that the
Direct Investors shall have the right to participate in any reallocation of
shares by Windward pursuant to Section 12.1(e) of the Shareholders Agreement.
SECTION 1.5 DESIGNATION OF DIRECTORS. (a) Notwithstanding the
provisions of Sections 2.2 and 2.3 of the Shareholders Agreement, or any other
provision contained therein, from and after the Closing (as defined in the
Implementation Agreement), the Direct Investors (other than BancAmerica) shall
be entitled from time to time to (i) designate additional directors of the
Company and (ii) replace any Windward Nominee who resigns, dies, is removed or
is unable to serve on the Board for any reason prior to the expiration of his or
her term as a director of the Company, or whose term expires (such additional or
replacement directors, the "Direct Investor Nominees"), in each case, so that
the number of Direct Investor Nominees on the Board shall approximate a
percentage of the Board proportionate to the percentage of Common Stock of the
Company held directly or indirectly by the Direct Investors (including
BancAmerica) and their respective Permitted Transferees and Affiliates.
Notwithstanding the provisions of Sections 2.2 and 2.3 of the Shareholders
Agreement, or any other provision contained therein, from and after the Closing
(as defined in the Implementation Agreement), each of the Shareholders shall
vote its shares (and all shares it is entitled to vote by proxy) of Company
Stock (to the extent entitled to vote) at each regular or special meeting of the
shareholders of the Company called for the purpose of filling positions on the
Board, or in any written consent executed in lieu of such a
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meeting of shareholders, and shall take all actions reasonably necessary, to
ensure the election to the Board of the Direct Investor Nominees, including, if
necessary, increasing the size of the Board.
To effectuate the provisions of this Section 1.5. the Secretary of the
Company, or if there be no Secretary such other officer of the Company as the
Board may appoint to fulfill the duties of the Secretary (the "Secretary"),
shall not record, and the Company shall not give effect to, any vote or consent
contrary to, or inconsistent with, the terms of this Section 1.5.
(b) The Company shall pay the reasonable out-of-pocket expenses
incurred by each director and observer in connection with attending the
meetings of the Board and any committee thereto.
SECTION 1.6 OBSERVATION RIGHTS. (a) Each of Suez Capital Partners II,
L.P. and Indosuez Capital Co-Invest Partners, L.P. (the "Indosuez Observers")
shall have the right to appoint a representative to attend (including by means
of conference telephone or similar communications equipment by which all persons
can hear each other) all meetings of the Board of Directors, including any
committees thereof, in a non-voting observer capacity and, in this respect, the
Company shall give such representative copies of all notices, minutes (including
any drafts), consents, and other materials (including presentations, studies,
reports, charts, etc.), that it makes available to its directors. The Company
agrees to comply with the notice provisions specified in the By-laws for notices
to be sent to members of the Board of Directors, with respect to notices sent to
a representative in respect of any annual or special meeting of the Company's
Board of Directors, including any committees thereof. Each Indosuez Observer to
whom this provision applies reserves the right to remove and replace its
representative in its sole discretion. In the event any representative is unable
or unwilling to attend any of the Company's Board of Directors meetings,
including any committees thereof, the Indosuez Observer may designate a
replacement representative.
(b) Each representative shall hold in confidence and trust
and not use or disclose to any third parties any confidential information
related to the Company's business, finances, plans, investors and other
material non-public information provided to or learned by them in connection
with their rights under this Section 1.6.
(c) Each Indosuez Observer and the Company agree that each
representative of a Indosuez Observer with the observation rights set
forth in this Section 1.6 will be given sufficient time by the
Chairperson of the Board of Directors to withdraw at the
representative's election from observation of or participation in any
of the Company's Board of Directors' meetings, including any committees
thereof, prior to the commencement of any discussion of material
non-public information or for any other reason.
(d) Notwithstanding any other provisions of this Section 1.6,
any obligations and representations of a representative of the Indosuez
Observers described in any of Sections 1.6(a)-(c) shall bind such
representative to the same obligations as to confidential matters as
would apply if the representative were a member of the Board of
Directors of the Company (and no greater obligations shall apply).
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SECTION 1.7 REPLACEMENT OF DIRECTORS. The Direct Investor Nominees are
hereby deemed to be "Nominees" (and individually, a "Nominee") for purposes of
Section 2.3 of the Shareholders Agreement.
SECTION 1.8 VOTING REQUIREMENT OF BOARD OF DIRECTORS AND COMMITTEE OF
BOARD OF DIRECTORS. ARTICLE FIFTH, Section C (entitled "Special Voting
Requirements of Board of Directors and Committee of The Board of Directors"), of
the Articles of Incorporation of the Company as in effect on the date hereof,
has no further force and effect and is hereby null and void. In the event that
any provision of the Company's bylaws or articles of incorporation is
inconsistent with any provision of the Shareholders Agreement, as amended, the
Shareholders shall take such action as may be necessary to amend any such
provision in the Company's bylaws or articles of incorporation to remedy such
inconsistency.
SECTION 1.9 INSERTION OF SECTION 2.4.1. The Shareholders Agreement is
hereby amended by inserting in the following new Section 2.4.1 therein:
2.4.1 CALLING SPECIAL MEETINGS FOR THE ELECTION OR REMOVAL
OF DIRECT INVESTOR NOMINEES. Notwithstanding any provisions of the
Shareholders Agreement to the contrary, each Shareholder hereby agrees to use
such Shareholder's best efforts to call, or cause the appropriate officers
and directors of the Company to call, a special meeting of shareholders of
the Company and to vote all the shares of Company Stock (to the extent
entitled to vote) owned or held of record by such Shareholder (and all shares
it is entitled to vote by proxy) for, or to take all actions by written
consent in lieu of any such meeting necessary to cause, (i) an increase in
the size of the Board, (ii) the election to the Board of any Direct Investor
Nominee, or (iii) the removal (with or without Cause) of any Direct Investor
Nominee, in each case, if the holders of a majority of the Common Stock held
directly or indirectly by the Direct Investors (other than BancAmerica)
request such action in writing. Any removal of a Direct Investor Nominee
pursuant to the previous sentence may be for any reason (with or without
Cause, not withstanding the provisions of Section 2.6 of the Shareholders
Agreement). Except for any action taken in accordance with the previous two
sentences of this Section 2.4.1 or with respect to the removal of a director
for Cause, each Shareholder further agrees to take no action, whether by
voting of shares of Company Stock or otherwise, with respect to the removal
of any Direct Investor Nominee.
SECTION 1.10 AMENDMENT OF THE SHAREHOLDERS AGREEMENT. The second
sentence of Section 14.10(a) of the Shareholders Agreement is hereby amended to
require the Requisite Approval, in addition to the other approvals required
therein, for any of the actions prohibited by that sentence, including, without
limitation, any amendment, modification, or supplementation of the Shareholders
Agreement.
SECTION 1.11 TERMINATION OF THE SHAREHOLDERS AGREEMENT. (a) Section
13.1(a) of the Shareholders Agreement is hereby deleted in its entirety and the
following is substituted therefor:
"(a) 12:00 p.m., New York City time, on March 29, 2005."
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(b) Section 13.1(d) of the Shareholders Agreement is hereby
amended to require the Requisite Approval, in addition to the other approvals
required therein, for any termination of the Shareholders Agreement pursuant
to that section.
SECTION 1.12 NOTICES. Section 14.7 of the Shareholders Agreement is
hereby amended to require that all notices and other communications pertaining
to this Amendment, in addition to the other notice and other communications
required in the Shareholders Agreement, shall be in writing and shall be deemed
to have been duly given upon the receipt thereof by the other parties listed
below. Such notices, in addition to the requirements of Section 14.7 of the
Shareholders Agreement, shall be delivered by hand, or mailed, certified or
registered mail with postage prepaid, or sent by overnight courier:
If to the Company, to:
Meridian Automotive Systems, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Metropolitan Life Insurance Company, to:
Metropolitan Life Insurance Company
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
Metropolitan Life Insurance Company
Area 6H
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Northwestern Mutual Life Insurance Company, to:
The Northwestern Mutual Life Insurance Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
The Northwestern Mutual Life Insurance Company
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇
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Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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If to CDPQ, to:
Capital d'Amerique CDPQ Inc.
2001 avenue ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Citicorp Center
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Windward to:
Windward Capital Partners, L.P.
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▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to CSFB, to:
Credit Suisse First Boston Private Equity
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Citicorp Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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If to BancAmerica to:
BancAmerica Capital Investors II. L.P.
▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Citicorp Center
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Indosuez to:
Indosuez Capital
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▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Thierny de Vergnes
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Citicorp Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 1.13 TRANSFER OF COMMON STOCK BY WINDWARD. Notwithstanding any
provision of the limited liability company agreements or limited partnership
agreements of ▇▇▇▇▇▇▇/BACI, L.L.C., Windward/Quebec, L.L.C., Windward/Quebec ▇▇
▇▇, L.L.C., Windward/Merchant, L.P., and Windward/Merban, L.P., Windward hereby
acknowledges that it has granted to the Direct Investors irrevocable proxies
with respect to, among other things, any sale, transfer, or other disposition of
Common Stock held indirectly by the Direct Investors and accordingly hereby
agrees that it will not sell, transfer, or otherwise dispose of any shares of
Common Stock held indirectly by any Direct Investor without the consent of such
Direct Investor, except pursuant to the terms and conditions of Article V of
the Shareholders Agreement, as amended.
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ARTICLE II
INCORPORATION OF SHAREHOLDERS AGREEMENT
SECTION 2.1 DOCUMENTATION WITH RESPECT TO THE SHARES. The Direct
Investors hereby acknowledge that the shares of Common Stock are subject to the
Shareholders Agreement.
SECTION 2.2 ADDITION OF NEW SHAREHOLDERS. Upon the execution of this
Amendment The Northwestern Mutual Life Insurance Company and any Direct
Investors who are not already parties to the Shareholders Agreement shall be
deemed, in accordance with Section 10.1 of the Shareholders Agreement, to have
the same rights and obligations as a Shareholder for purposes of the
Shareholders Agreement, as amended. The Direct Investors hereby agree to be
bound by, and governed by, the terms and conditions of the Shareholders
Agreement, as amended.
SECTION 2.3 WINDWARD GROUP. All of the Direct Investors, to the extent
not already a member of the Windward Group, are hereby deemed to be a member of
the Windward Group for all purposes of the Shareholders Agreement, including,
without limitation, for purposes of (i) the definition of "Permitted Transferee"
in Section 1.1(ad) of the Shareholders Agreement, (ii) the exclusions from, and
exceptions to, the restrictions on transfer in Article III of the Shareholders
Agreement, (iii) the tag-along rights set forth in Article IV of the
Shareholders Agreement, (iv) the right to participate in an IPO Event pursuant
to Section 5.6 of the Shareholders Agreement, and (v) the right to participate
as part of the Windward Registration Group pursuant to Article IX of the
Shareholders Agreement.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 TERMS OF AMENDMENT. This Amendment 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 3.2 GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware.
SECTION 3.3 SEVERABILITY. If any provision of this Amendment 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 Amendment,
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 3.4 COUNTERPARTS. This Amendment 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 3.5 HEADINGS. All section headings herein are for convenience
of reference and are not part of this Amendment, and no construction or
interference shall be derived therefrom.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Amendment has been duly executed by each of
the parties hereto as of the date first written above.
WINDWARD CAPITAL ASSOCIATES, L.P.
By: Windward Capital Associates, Inc., its general
partner
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
WINDWARD/MERBAN, L.P.
By: Windward Capital Associates, L.P., its general
partner
By: Windward Capital Associates, Inc., its
general partner
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
WINDWARD/MERCHANT, L.P.
By: Windward Capital Associates, L.P., its general
partner
By: Windward Capital Associates, Inc., its
general partner
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
WINDWARD/NORTHWEST, L.P.
By: Windward Capital Associates, L.P., its general
partner
By: Windward Capital Associates, Inc., its
general partner
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
-▇▇-
▇▇▇▇▇▇▇▇/▇▇▇▇ ▇▇, L.L.C.
By: Windward Capital Associates, L.P., its manager
By: Windward Capital Associates, Inc., its
general partner
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
WINDWARD/PARK ▇▇ ▇▇, L.L.C.
By: Windward Capital Associates, L.P., its manager
By: Windward Capital Associates, Inc., its general
partner
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
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/ [Illegible]
-------------------------------------
Name:
Title:
WINDWARD/BADGER II, L.L.C.
By: Windward Capital Associates, L.P., its manager
By: Windward Capital Associates, Inc., its general
partner
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
-14-
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/ [Illegible]
-------------------------------------
Name:
Title:
WINDWARD/BADGER ▇▇ ▇▇, L.L.C.
By: Windward Capital Associates, L.P., its manager
By: Windward Capital Associates, Inc., its general
partner
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
WINDWARD/METROPOLITAN, L.L.C.
By: Windward Capital Associates, L.P., its manager
By: Windward Capital Associates, Inc., its general
partner
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
WINDWARD/QUEBEC, L.L.C.
By: Windward Capital Associates, L.P., its manager
By: Windward Capital Associates, Inc., its general
partner
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
-▇▇-
▇▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇ ▇▇, L.L.C.
By: Windward Capital Associates, L.P., its manager
By: Windward Capital Associates, Inc., its general
partner
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
WINDWARD/▇▇▇▇▇, L.L.C.
By: Windward Capital Associates, L.P., its manager
By: Windward Capital Associates, Inc., its general
partner
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
WINDWARD/BACI, L.L.C.
By: Windward Capital Associates, L.P., its manager
By: Windward Capital Associates, Inc., its general
partner
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
CAPITAL D'AMERIQUE CDPQ INC.
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
By: /s/ [Illegible]
-------------------------------------
Name:
Title:
-16-
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By: /s/ A. ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: A. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Its Authorized Representative
SUEZ/MERIDIAN, L.L.C
By: __________________________________
By: ___________________________
By: ___________________________
Name:
Title:
INDOSUEZ CAPITAL CO-INVEST PARTNERS, L.P.
By: __________________________________
By: ___________________________
By: ___________________________
Name:
Title:
-▇▇-
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇ CDPQ INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: _______________________________
Name:
Title:
SUEZ/MERIDIAN, L.L.C.
By: Suez Industries, its managing member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
By: _______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: CEO
INDOSUEZ CAPITAL CO-INVEST PARTNERS, L.P.
By: Indosuez CMII, Inc. L.P.
By: /s/ [Illegible]
-------------------------------
By: /s/ [Illegible]
-------------------------------
Name:
Title:
-18-
SUEZ CAPITAL PARTNERS II, L.P.
By: SCP II Management L.L.C., its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Title: Managing Member
SCP II ASSOCIATES
By: /s/ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Title: Managing Partner
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇.▇. ▇▇▇▇▇▇▇
---------------------------------------
▇.▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BANCAMERICA CAPITAL INVESTORS II, L.P.
By: BancAmerica Capital Management II, L.P., its
general partner
By: BACM II GP, LLC, its general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Partner
CREDIT SUISSE FIRST BOSTON PRIVATE EQUITY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-Fact
-20-
MERIDIAN AUTOMOTIVE SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman, President & CEO
-21-