EXECUTION
JOINDER AND RIGHTS AGREEMENT
THIS JOINDER AND RIGHTS AGREEMENT (this "AGREEMENT") is made as of
October 14, 1999, by and between X.X. Xxxxxx Automotive Castings, Inc., a
Delaware corporation (the "COMPANY") and Tower Automotive, Inc., a Delaware
corporation ("TOWER").
As of April 21, 1999, the Company and certain of the Company's
stockholders entered into an investor stockholders agreement (as amended from
time to time in accordance with its terms, the "STOCKHOLDERS AGREEMENT") and a
registration rights agreement (as amended from time to time in accordance with
its terms, the "REGISTRATION AGREEMENT").
On the date hereof, the Company issued a Subordinated Convertible Note
to Tower in the aggregate principal amount of $30,000,000 (the "CONVERTIBLE
NOTE") convertible into up to 5,087.5480 shares of the Company's Class A Common
Stock par value $.01 per share (the "CLASS A COMMON").
On the date hereof the Company's stockholders have entered into a
Stock Purchase Agreement whereby, among other things, such stockholders have
approved an amendment to each of the Stockholders Agreement and the Registration
Agreement permitting the joinder of Tower to such agreements.
In connection with the issuance of the Convertible Note, the parties
to this Agreement desire that Tower become a party to the Stockholders Agreement
and Registration Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. ADDITION OF TOWER TO THE STOCKHOLDERS AGREEMENT. The parties
hereto agree that, by and upon execution of this Agreement, Tower shall be a
party to the Stockholders Agreement and shall be considered a "STOCKHOLDER" and
a holder of "COMMON STOCK" thereunder and, except as otherwise provided herein,
each shall be entitled to the rights and benefits and subject to the duties and
obligations of a Stockholder and a holder of Common Stock thereunder, as fully
as if Tower were an original signatory thereto in such capacities.
2. ADDITION OF TOWER TO THE REGISTRATION AGREEMENT. The parties
hereto agree that, by and upon execution of this Agreement, Tower shall be a
party to the Registration Agreement and shall be considered an "INVESTOR" and a
holder of "REGISTRABLE SECURITIES" thereunder and shall be entitled to the
rights and benefits and subject to the duties and obligations of an Investor and
a
holder of Registrable Securities thereunder, as fully as if Tower were an
original signatory thereto in such capacities.
3. PRE-EMPTIVE RIGHTS. Notwithstanding anything to the contrary
contained herein, Tower hereby agrees that under Article 6 of the Stockholders
Agreement in respect of pre-emptive rights and for the purposes of determinating
"Pro Rate Share" (as defined therein) thereunder, Tower shall be deemed to be a
"Stockholder" and a holder Common Stock only with respect to those shares of
Class A Common then actually held by Tower as a result of conversion of all or
part of the Convertible Note.
4. RESTRICTIVE LEGENDS. In lieu of the legend required by Article 7
of the Stockholders Agreement, each certificate evidencing shares of Class A
Common acquired upon conversion of the Convertible Note (or any Company
securities issued with respect to such shares) shall, until such time as such
shares are no longer subject to the provisions of the Stockholders Agreement in
accordance with the provisions thereof, be stamped or otherwise imprinted with a
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
ON OCTOBER 14, 1999, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY
STATE, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION UNDER THE ACT OR APPLICABLE STATE LAW OR AN
EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AND CERTAIN OTHER AGREEMENTS SET FORTH IN A STOCKHOLDERS
AGREEMENT DATED AS OF APRIL 21, 1999, BY AND AMONG THE ISSUER OF SUCH
SECURITIES (THE "COMPANY") AND CERTAIN OF THE COMPANY'S STOCKHOLDERS,
AS AMENDED AND MODIFIED FROM TIME TO TIME. THE SECURITIES REPRESENTED
BY THIS CERTIFICATE BECAME SUBJECT TO SUCH STOCKHOLDERS AGREEMENT
PURSUANT TO A JOINDER AND RIGHTS AGREEMENT DATED AS OF OCTOBER 14,
1999, BY AND AMONG THE COMPANY AND THE INITIAL HOLDER OF SUCH
SECURITIES. A COPY OF EACH SUCH AGREEMENT SHALL BE FURNISHED WITHOUT
CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST."
5. CONTINUING EFFECT. Except as modified by this Agreement, the
Stockholders Agreement shall continue and remain in full force and effect in
accordance with their terms.
6. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law
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or rule in any jurisdiction, such invalidity, illegality or unenforceability
shall not affect the validity, legality or enforceability of any other provision
of this Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
7. CONSENT TO AMENDMENTS. The provisions of this Agreement may be
amended, modified, or waived only with the prior written consent of the Company
and Tower; PROVIDED that no such amendment, modification, waiver shall in any
way be construed to constitute an amendment, modification, or waiver of the
Stockholders Agreement (including without limitation with respect to Tower's
being a party to such agreements and the rights and obligations of Tower as a
party to such agreement), which agreement may only be amended, modified, or
waived in accordance with the provisions thereof.
8. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
9. GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF DELAWARE SHALL
GOVERN ALL ISSUES AND QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE COMPANY
AND ITS STOCKHOLDERS. ALL OTHER ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEABILITY OF THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR
PROVISIONS (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE
OF NEW YORK.
10. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and Tower and their respective successors and assigns, whether so
expressed or not.
11. DESCRIPTIVE HEADINGS; INTERPRETATION; NO STRICT CONSTRUCTION.
The descriptive headings of this Agreement are inserted for convenience only and
do not constitute a substantive part of this Agreement. Whenever required by
the context, any pronoun used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular forms of nouns, pronouns,
and verbs shall include the plural and vice versa. Except as otherwise
expressly provided herein, reference to any agreement, document, or instrument
means such agreement, document, or instrument as amended or otherwise modified
from time to time in accordance with the terms thereof, and if applicable
hereof. The use of the words "include" or "including" in this Agreement shall
be by way of example rather than by limitation. The use of the words "or,"
"either" or "any" shall not be exclusive. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
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burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
12. DELIVERY BY FACSIMILE. This Agreement, the agreements referred
to herein, and each other agreement or instrument entered into in connection
herewith or therewith or contemplated hereby or thereby, and any amendments
hereto or thereto, to the extent signed and delivered by means of a facsimile
machine, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall reexecute original forms thereof and deliver them to all
other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
X.X. XXXXXX AUTOMOTIVE CASTINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Its: C.F.O.
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TOWER AUTOMOTIVE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Its: V.P. and C.F.O.
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SIGNATURE PAGE TO THE JOINDER AGREEMENT
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