EXHIBIT 10.8
[EXECUTION]
AMENDMENT NO. 2 TO REGISTRATION AGREEMENT AND
JOINDER AND RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 TO REGISTRATION AGREEMENT AND JOINDER AND
RIGHTS AGREEMENT (this "Agreement") is made as of December 27, 2002, by and
among X.X. Xxxxxx Automotive Castings, Inc., a Delaware corporation (the
"Company"), the stockholders listed on the signature pages hereto (the
"Stockholders"), and the institutional investors listed on the signature pages
hereto (the "Purchasers").
As of April 21, 1999, the Company and certain of the Company's
stockholders entered into a registration rights agreement, as amended by that
certain Amendment No. 1 to Registration Agreement dated November 30, 2000 (as
amended from time to time in accordance with its terms, the "Registration
Agreement").
On the date hereof, the Company and the Purchasers entered
into a Securities Purchase Agreement (the "Purchase Agreement"), pursuant to
which the Purchasers purchased one or more warrants to purchase 4,041,458 shares
of the Company's Class Q-1 Common Stock par value $.01 per share (together with
any warrants issued in exchange therefor or transfer thereof, the "Warrants").
In connection with the issuance of the Warrants, the parties
to this Agreement desire (i) to amend the Registration Agreement and (ii) that
each Purchaser becomes a party to the Registration Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment of Registration Agreement.
(a) Subsection 1(a) of the Registration Agreement is hereby
amended by deleting "consummation of a Qualified Public Offering" where it
appears in the second sentence thereof and substituting "earlier to occur of (i)
the consummation of an Initial Public Offering and (ii) December 27, 2006"
therefor.
(b) Subsection 1(b) of the Registration Agreement is hereby
amended by deleting "consummation of a Qualified Public Offering" where it
appears in the first sentence thereof and substituting "earlier to occur of (i)
consummation of an Initial Public Offering and (ii) December 27, 2006" therefor.
(c) Subsection 9(j) of the Registration Agreement is hereby
amended by deleting the definition of "Registrable Securities" contained therein
in its entirety and by substituting the following therefor:
"Registrable Securities" means (i) any Class A Common, Class B
Common, Class C Common, Class D-1 Common, Class D-2 Common and Class E Common
issued pursuant to the Recapitalization Agreement, (ii) any Class A-1 Common,
Class A-2 Common, Class P Common, Class Q-1 Common and Class Q-2 Common, (iii)
any of the Company's common
stock issued or issuable with respect to securities referred to in clause (i) or
(ii) above by way of a stock dividend or stock split, conversion or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization, and (iv) any other shares of the Company's common stock
held by Persons holding securities described in clauses (i), (ii) or (iii) above
(other than any such shares which have been previously distributed pursuant to a
Public Sale). As to any particular Registrable Securities, such securities will
cease to be Registrable Securities when they have been distributed to the public
pursuant to a Public Sale. For purposes of this Agreement, a Person will be
deemed to be a holder of Registrable Securities whenever such Person has the
right to acquire directly or indirectly such Registrable Securities (upon
conversion, exchange or exercise in connection with a transfer of securities or
otherwise (including upon exercise of any Warrants) but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
(d) Subsection 9(p) of the Registration Agreement is hereby
amended by deleting the definition of "Warrant" in its entirety and substituting
the following therefor:
"Warrants" means the warrants issued pursuant to the
Securities Purchase Agreement, dated as of December 27, 2002 by and between X.X.
Xxxxxx Automotive Castings, Inc. and the institutional investors named therein,
together with any securities issued in exchange therefor or on transfer thereof,
all as amended, modified and supplemented from time to time.
(e) Section 9 is hereby further amended by adding thereto the
following definitions, which shall be inserted in proper alphabetical order:
"Class Q-1 Common" means the Company's Class Q-1 Common Stock,
par value $.01 per share.
"Class Q-2 Common" means the Company's Class Q-2 Non-Voting
Common Stock, par value $.01 per share.
"Initial Public Offering" means the sale in an initial
underwritten public offering of the Company's equity securities under the
Securities Act."
(f) Subsection 10(d) of the Registration Agreement is hereby
amended by adding thereto the following sentence, which shall be inserted as the
penultimate sentence of such section:
"To the extent that any amendment or waiver of this Agreement
disproportionately and adversely affects the rights of the holders of Warrant
Registrable Securities relative to the rights of the holders of any class of
Registrable Securities, the prior written consent of the holders of at least a
majority of the Warrant Registrable Securities shall be required to effect such
amendment or waiver."
2. Addition of the Purchaser to the Registration Agreement.
The parties hereto agree that, by and upon execution of this Agreement, each of
the Purchasers shall be a party to the Registration Agreement and each shall be
considered an "Investor" and a holder of "Warrant Registrable Securities"
thereunder and shall be entitled to the rights and benefits and subject to
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the duties and obligations of an Investor and a holder of Warrant Registrable
Securities thereunder, as fully as if such Purchaser were an original signatory
thereto in such capacities.
3. Continuing Effect. Except as modified by this Agreement,
the Registration Agreement shall continue and remain in full force and effect in
accordance with their terms.
4. 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 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.
5. Consent to Amendments. The provisions of this Agreement may
be amended, modified, or waived only with the prior written consent of the
Company, the Stockholders and the Purchasers; provided that no such amendment,
modification, waiver shall in any way be construed to constitute an amendment,
modification, or waiver of the Registration Agreement, which agreement may only
be amended, modified, or waived in accordance with the provisions thereof.
6. 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.
7. 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.
8. 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 the Purchaser and their respective successors and assigns,
whether so expressed or not.
9. 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
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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 burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
10. 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: _________________________________
Its: _________________________________
J2R PARTNERS III
By: _________________________________
Its: _________________________________
XXXXXXXX STREET PARTNERS II
By: _________________________________
Its: _________________________________
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: _________________________________
Its: Authorized Member
[Continuation of Signature Page to Amendment No. 2 to
Registration Agreement and Joinder and Rights Agreement]
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: ____________________________________
Its: ____________________________________
NORWEST EQUITY CAPITAL, L.L.C.
By: Itasca NEC, L.L.C., Managing Member
By: ________________________, Member
TOWER AUTOMOTIVE, INC.
By: ____________________________________
Its: ____________________________________
ONEX CORPORATION,
as successor in interest to Onex American
Holdings, LLC
By: ____________________________________
Its: ____________________________________
By: ____________________________________
Its: ____________________________________
[Continuation of Signature Page to Amendment No. 2 to
Registration Agreement and Joinder and Rights Agreement]
XXXXX CAPITAL PARTNERS III LIMITED
PARTNERSHIP
By: Xxxxx Capital Partners Management
Company III, L.L.C.
Its: General Partner
By: ____________________________________
Its: ____________________________________
XXXXX CAPITAL PARTNERS II LIMITED
PARTNERSHIP
By: Xxxxx Capital Partners Management
Company, L.L.C.
Its: General Partner
By: ____________________________________
Its: ____________________________________
BCP III AFFILIATES FUND LIMITED
PARTNERSHIP
By: Xxxxx Capital Partners Management
Company III, L.L.C.
Its: General Partner
By: ____________________________________
Its: ____________________________________
BCP III SPECIAL AFFILIATES LIMITED
PARTNERSHIP
By: Xxxxx Capital Partners Management
Company III, L.L.C.
Its: General Partner
By: ____________________________________
Its: ____________________________________
BCP II AFFILIATES FUND LIMITED
PARTNERSHIP
By: Xxxxxx X. Xxxxx & Co. Incorporated
Its: General Partner
By: ____________________________________
Its: ____________________________________
WINDWARD/METROPOLITAN, L.L.C.
By: ____________________________________
Its: ____________________________________
WINDWARD/PARK WACI, L.L.C.
By: ____________________________________
Its: ____________________________________
[Continuation of Signature Page to Amendment No. 2 to
Registration Agreement and Joinder and Rights Agreement]
____________________________________________
Xxxxxxx X. Xxxxxx
____________________________________________
X. X. Xxxxxxx
____________________________________________
Xxxx X. Xxxxxxx
____________________________________________
Xxxxx X. Xxxx
____________________________________________
Xxxx X. Xxxxxx
____________________________________________
Xxxxx X. Xxxx
____________________________________________
Xxxxxx X. Xxxxxx
____________________________________________
Xxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx, Trustee of The Xxxxxx X.
Xxxxxxxx Annuity Trust III, dated September 1,
1999
By: ____________________________________
Its: Trustee
Xxxx-Xxxxxx X. Xxxxxxx and her successors in
trust, as Trustees of the Xxxx-Xxxxxx X. Xxxxxxx
Revocable Trust under Agreement dated November
12, 2001
By: ____________________________________
Its: ____________________________________
[Continuation of Signature Page to Amendment No. 2 to
Registration Agreement and Joinder and Rights Agreement]
XXXX XXXXXXX LIFE INSURANCE COMPANY
By: ____________________________________
Its: ____________________________________
INVESTORS PARTNER LIFE INSURANCE
COMPANY
By: ____________________________________
Its: ____________________________________
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: ____________________________________
Its: ____________________________________
XXXX XXXXXXX INSURANCE COMPANY
OF VERMONT
By: ____________________________________
Its: ____________________________________
XXXXXXX MEZZANINE PARTNERS II, L.P.
By: Xxxxxxx Mezzanine Investments II LLC,
its General Partner
By: Xxxx Xxxxxxx Life Insurance Company,
as Investment Manager
By: ____________________________________
Its: ____________________________________
SIGNATURE 5 L.P.
By: Xxxx Xxxxxxx Life Insurance Company,
as Portfolio Advisor
By: ____________________________________
Its: ____________________________________
WINFIELD CAPITAL CORP.
By: ____________________________________
Its: ____________________________________
QDRF MASTER LTD.
By: QDRA LLC
Its: Advisor
By: ____________________________________
Its: ____________________________________
[Continuation of Signature Page to Amendment No. 2 to
Registration Agreement and Joinder and Rights Agreement]
GENERAL ELECTRIC CAPITAL
CORPORATION
By: ____________________________________
Its: ____________________________________
SPRUGOS - FRENCH, LLC
By: Xxxxxx Xxxxxx Medical Institute,
Sole Member and Manager
By: ____________________________________
Xxxxxx X. Xxxxxxxx
Its: Vice President and Chief Investment
Officer
HY II INVESTMENTS, L.L.C., a Delaware
limited liability company
By: ____________________________________
Its: ____________________________________
STONEHILL INSTITUTIONAL
PARTNERS, L.P.
By: ____________________________________
Xxxxx Xxxxxxx
Its: General Partner
STONEHILL OFFSHORE PARTNERS LIMITED
By Stonehill Advisers LLC
By: ____________________________________
Xxxxx Xxxxxxx
Managing Member
XXXXXXX & XXXXXX VENTURE
PARTNERS, L.P.
By: ____________________________________
Xxxxxx X. Xxxxxxx Xx.
Its: General Partner
[Continuation of Signature Page to Amendment No. 2 to
Registration Agreement and Joinder and Rights Agreement]
Sankaty High Yield Partners II, L.P.
By: ____________________________________
Its: ____________________________________
Sankaty High Yield Partners III, L.P.
By: ____________________________________
Its: ____________________________________
Great Point CLO 1999-1, Ltd.
By: Sankaty Advisors, its collateral
manager
By: ____________________________________
Its: ____________________________________
Race Point CLO, Limited
By: Sankaty Advisors, its collateral manager
By: ____________________________________
Its: ____________________________________
Sankaty Credit Opportunities, L.P.
By: ____________________________________
Its: ____________________________________
JLF/AR-I LLC
By: ____________________________________
Its: ____________________________________
[Continuation of Signature Page to Amendment No. 2 to
Registration Agreement and Joinder and Rights Agreement]
