-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Iv/1h+1+mBIMbScfVq00L+0rp6zLV0o4Y6N3H+tr0tQjGONEmuLrNW+C/FVI0bnM bSi83Q6q4NlyNJLX5RFQnw== 0000950137-06-006222.txt : 20060524 0000950137-06-006222.hdr.sgml : 20060524 20060524140604 ACCESSION NUMBER: 0000950137-06-006222 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 10 CONFORMED PERIOD OF REPORT: 20060519 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Changes in Control of Registrant ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060524 DATE AS OF CHANGE: 20060524 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEENAH FOUNDRY CO CENTRAL INDEX KEY: 0001040599 STANDARD INDUSTRIAL CLASSIFICATION: GLASS, GLASSWARE, PRESSED OR BLOWN [3220] IRS NUMBER: 391580331 STATE OF INCORPORATION: WI FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-28751-03 FILM NUMBER: 06863737 BUSINESS ADDRESS: STREET 1: 2121 BROOKS AVE STREET 2: PO BOX 729 CITY: NEENAH STATE: WI ZIP: 54927 BUSINESS PHONE: 9207257000 MAIL ADDRESS: STREET 1: 2121 BROOKS AVE STREET 2: PO BOX 729 CITY: NEENAH STATE: WI ZIP: 54927 8-K 1 c05620e8vk.txt FORM 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): May 19, 2006 NEENAH FOUNDRY COMPANY (Exact name of registrant as specified in its charter) WISCONSIN 333-28751 39-1580331 (State or other jurisdiction of (Commission File Number) (IRS Employer Identification No.) incorporation)
2121 BROOKS AVENUE P.O. BOX 729 NEENAH, WISCONSIN 54957 (Address of Principal executive offices, including Zip Code) (920) 725-7000 (Registrant's telephone number, including area code) NOT APPLICABLE (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT. Amendment to Loan and Security Agreement. On May 19, 2006, Neenah Foundry Company, a Wisconsin corporation ("Neenah"), and its bank lenders amended Neenah's bank Loan and Security Agreement to permit consummation of the transactions described in Item 5.01 below. A copy of Amendment No. 3 to the Loan and Security Agreement, dated as of May 19, 2006, is filed as Exhibit 10.1 hereto and is incorporated herein by reference. Supplemental Indentures. On May 23, 2006, Neenah, the Subsidiary Guarantors (as defined in the indentures) and the Bank of New York, as Trustee, entered into supplemental indentures relating to Neenah's 11% Senior Secured Notes due 2010 (the "11% Notes") and 13% Senior Subordinated Notes due 2013 (the "13% Notes" and collectively with the 11% Notes, the "Notes"). The supplemental indentures amend the indentures (the "Indentures") relating to the Notes to provide that the obligation to repurchase Notes in the event of a change of control may be satisfied not only by a purchase by Neenah but also by a purchase by a designee of Neenah. A copy of the supplemental indenture relating to the 13% Notes is filed as Exhibit 4.1 and a copy of the supplement indenture relating to the 11% Notes is filed as Exhibit 4.2. Exhibits 4.1 and 4.2 are incorporated herein by reference. Neenah has also entered into the Letter Agreement described in Item 5.01 below and filed as Exhibit 10.2 hereto, which is incorporated herein by reference. ITEM 5.01. CHANGES IN CONTROL OF REGISTRANT. (b) Over the past several months Neenah's officers have been apprised by representatives of Tontine Capital Partners, L.P. ("Tontine") of Tontine's interest in acquiring additional shares of common stock of Neenah's indirect parent, ACP Holding Company, a Delaware corporation ("ACP"). All of the outstanding common stock of Neenah is owned by NFC Castings, Inc., a wholly owned subsidiary of ACP. The officers of Neenah, who are also the officers of ACP, have kept the directors of ACP, who are also the directors of Neenah, informed of Tontine's interest. On May 19, 2006, ACP received a transfer notice (the "Transfer Notice") from MacKay Shields LLC ("MacKay Shields") and Citicorp Mezzanine III, L.P. and certain of its affiliates, collectively ("CM-III") relating to shares of common stock of ACP (the "Shares") and warrants to purchase Shares for an exercise price of $.01 per Share (the "Warrants" and together with the Shares, the "ACP Securities") held by MacKay Shields and CM-III. Attached to the Transfer Notice was an executed Securities Purchase Agreement by and among Tontine, MacKay Shields, CM-III, certain affiliates of Trust Company of the West ("TCW" and with MacKay Shields and CM-III, the "Major Sellers") and Metropolitan Life Insurance Company ("Met Life"). The Securities Purchase Agreement 2 provides, subject to certain terms and conditions, for the purchase by Tontine of all of the ACP Securities held by the Major Sellers and Met Life for $1.80 per Share and $1.79 per Warrant, payable in cash. The Transfer Notice is required under the terms of the Stockholders Agreement, dated as of October 8, 2003 (the "Stockholders Agreement"), among ACP, the Management Stockholders (as defined therein), and the Major Sellers. The terms of the Stockholders Agreement provide ACP with the first option to purchase the ACP Securities proposed to be sold to Tontine by MacKay Shields and CM-III for the same consideration being offered by Tontine. The board of directors of ACP duly considered the first option to purchase ACP Securities set forth in the Transfer Notice, but unanimously determined that it was in the best interest of ACP not to exercise the first option due to, among other things, the limitations on share repurchases contained in Neenah's Loan and Security Agreement and the need to utilize financial resources to implement Neenah's business plan. Accordingly, by a letter dated May 22, 2006 (the "Response Letter"), ACP notified MacKay Shields and CM-III that ACP had determined not to accept the first option to purchase the ACP Securities covered under the Transfer Notice. The purchase of ACP Securities by Tontine pursuant to the Securities Purchase Agreement is subject to customary conditions and requires, among other things, each Major Seller to use its commercially reasonable efforts to amend or cause the amendment of ACP's bylaws by consenting to such amendment (if such consent is required under the Stockholders Agreement) at or prior to the closing under the Securities Purchase Agreement to allow vacancies on ACP's board of directors to be filled by the then remaining directors. On May 19, 2006, Tontine also entered into a Stock Purchase Agreement (the "Stock Purchase Agreement") with certain officers and employees of Neenah and/or ACP who own a total of 4,000,000 Shares (the "Sellers"). The Stock Purchase Agreement provides that, subject to specified terms and conditions, including the closing of the transactions contemplated by the Securities Purchase Agreement, Tontine will purchase one-third of the Shares held by each of the Sellers for $1.80 per Share. Additionally, the Stock Purchase Agreement grants each Seller a right to "put" an additional one-third of his Shares, subject to specified terms and conditions, to Tontine one year after the initial closing for $1.80 per Share. The aggregate amount of ACP Securities that are subject to the Securities Purchase Agreement and the Stock Purchase Agreement (other than those Shares that may be put to Tontine one year after the initial closing) is 18,152,355 Shares and 20,992,053 Warrants, representing 48.4% of all Shares outstanding on a fully-diluted basis. The aggregate consideration to be paid for such securities is approximately $70.25 million. 3 Assuming that Tontine purchases all of the ACP Securities subject to the Securities Purchase Agreement and the Stock Purchase Agreement (other than those Shares that may be put to Tontine one year after the initial closing), Tontine would beneficially own, in the aggregate, 22,329,467 Shares, and 21,139,220 Warrants, representing 53.8% of all Shares outstanding on a fully-diluted basis, which includes the 4,177,112 Shares and 147,167 Warrants that Tontine beneficially owned prior to entering into the Securities Purchase Agreement and the Stock Purchase Agreement. The purchase of the ACP Securities by Tontine would constitute a Change of Control as defined in Neenah's Loan and Security Agreement, as amended, and the Indentures governing the Notes. In accordance with the Indentures, upon a Change of Control, Neenah is required to commence, within 30 days following a Change of Control, a tender offer to purchase all outstanding 11% Notes, and within 30 days following completion of that tender offer Neenah is required to commence a tender offer to purchase all outstanding 13% Notes. Both tender offers are required to be made at a price of 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase. Neenah has entered into an agreement with Tontine (the "Letter Agreement") whereby Tontine has agreed that Tontine or an affiliate will acquire directly any Notes that are tendered in the tender offers. Assuming that Tontine purchases all of the ACP Securities subject to the Securities Purchase Agreement, the provisions of the Stockholders Agreement would also terminate on the date of such acquisition. The information contained in Item 5.02 below is incorporated herein by reference. The foregoing descriptions of the Securities Purchase Agreement, the Stock Purchase Agreement, the Transfer Notice, the Response Letter and the Letter Agreement do not purport to be complete and are qualified in their entirety by reference to such documents, which are filed as Exhibits 99.1, 99.2, 99.3, 99.4 and 10.2, respectively, hereto, and are incorporated herein by reference. ITEM 5.02. DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS. As required by the Stockholders Agreement, the board of directors of ACP consists of five directors. Under the Stockholders Agreement, MacKay Shields designated two members to the board of directors and CM-III and TCW each designated one member to the board of directors. The MacKay Shields designees were Andrew B. Cohen and Benjamin C. Duster, IV, Esq. The CM-III and TCW designees were Michael J. Farrell and Jeffrey G. Marshall, respectively. As provided by the Stockholders Agreement, the fifth director is the Chief Executive Officer of ACP (and Neenah), William M. Barrett. Under the Stockholders Agreement, the board of directors of any subsidiary of ACP, including Neenah, is required to consist of the same number of directors and have the same composition as the board of directors of ACP. 4 In connection with the Securities Purchase Agreement, Andrew B. Cohen, Benjamin C. Duster, IV and Michael J. Farrell have determined to resign from the board of directors of ACP and its subsidiaries, including Neenah (the "Board of Directors"), and any board committees on which they serve, contingent and effective upon consummation of the transactions described in Item 5.01. Amendment of Bylaws of ACP. On May 19, 2006, the board of directors of ACP unanimously adopted an amendment to Section 4 of Article III of the bylaws of ACP (the "Bylaw Amendment"), effective immediately, to clarify that, as contemplated by the Stockholders Agreement and consistent with Delaware law, either a majority of the directors then in office, or the stockholders, may fill vacancies on the board and newly created directorships resulting from any increase in the authorized number of directors. A copy of the Bylaw Amendment is set forth as Exhibit 3.1 hereto and is incorporated herein by reference. Election of Directors to Fill Vacancies. The Board of Directors has unanimously elected, contingent and effective upon consummation of the transactions described in Item 5.01, Joseph V. Lash, David B. Gendell and Stephen E. K. Graham to the Board of Directors to fill the vacancies created by the resignations of Andrew B. Cohen, Benjamin C. Duster, IV and Michael J. Farrell. William M. Barrett and Jeffrey G. Marshall will continue to serve on the Board of Directors. Biographical information for Joseph V. Lash, David B. Gendell and Stephen E. K. Graham is set forth below. Joseph V. Lash, 43. Mr. Lash has been with Tontine Partners, a Greenwich, CT-based investment partnership, since July 2005. Prior to that, Mr. Lash was Senior Managing Director of Conway, Del Genio, Gries & Co. LLC, a financial advisory firm, from April 2002 to July 2005. From June 1998 to April 2001, Mr. Lash was Managing Director of JP Morgan Chase & Co., a financial services firm. David B. Gendell, 45. Mr. Gendell has been with Tontine Partners, a Greenwich, CT-based investment partnership, since January 2004. He focuses on investment opportunities in industrial and manufacturing companies. Prior to that, Mr. Gendell held senior positions at several venture-backed startups. He was President and Chief Operating Officer of Homserv, LLC, a privately-held data aggregator focused on real estate transactions. Prior to that, he served as President and Chief Operating Officer of Cogent Design Inc., a privately-held practice management software system. Stephen E. K. Graham, 48. Mr. Graham has been the Chief Financial Officer of Shiloh Industries, Inc., a publicly traded manufacturer of automotive components since joining the Company in October 2001. Prior to that, Mr. Graham has held the position of Chief Financial Officer with several companies, the first in 1994 when he joined Truck Components Inc., a publicly traded company with foundry and machining operations serving the heavy truck, automotive, construction and agricultural industries. Following his tenure at Truck Components Inc., Mr. Graham served as the Chief Financial Officer 5 of Dura Automotive Systems, Inc., also a publicly traded manufacturer of automotive components from May 1996 until February 2000. After Dura Automotive Systems, Inc., and immediately before joining Shiloh Industries, Inc., Mr. Graham joined Republic Technologies International, a fully integrated steel producer. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
EXHIBIT FILED NO. DESCRIPTION HEREWITH - --- ----------- -------- 3.1 Amendment to Bylaws of ACP X 4.1 Supplemental Indenture, dated as of May 23, 2006, to the Indenture dated October X 8, 2003, for the 13% Senior Subordinated Notes due 2013, among Neenah Foundry Company, the guarantors named therein, and the Bank of New York, as Trustee 4.2 Supplemental Indenture, dated as of May 23, 2006, to the Indenture dated October X 8, 2003, for the 11% Senior Secured Notes due 2010, among Neenah Foundry Company, the guarantors named therein, and the Bank of New York, as Trustee 10.1 Amendment No. 3 to Loan and Security Agreement, dated as of May 19, 2006, by and X among Neenah Foundry Company, its subsidiaries party thereto, the various lenders party thereto and Fleet Capital Corporation, as agent 10.2 Letter Agreement, dated May 18, 2006 X 99.1 Securities Purchase Agreement, dated as of May 19, 2006 X 99.2 Stock Purchase Agreement, dated as of May 19, 2006 X 99.3 Transfer Notice, dated as of May 19, 2006 X 99.4 Response Letter, dated May 22, 2006 X
6 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. NEENAH FOUNDRY COMPANY /s/ Gary W. LaChey --------------------------- Date: May 24, 2006 Name: Gary W. LaChey Title: Corporate Vice President - Finance 7 EXHIBIT INDEX
EXHIBIT FILED NO. DESCRIPTION HEREWITH - --- ----------- -------- 3.1 Amendment to Bylaws of ACP X 4.1 Supplemental Indenture, dated as of May 23, 2006, to the Indenture dated October X 8, 2003, for the 13% Senior Subordinated Notes due 2013, among Neenah Foundry Company, the guarantors named therein, and the Bank of New York, as Trustee 4.2 Supplemental Indenture, dated as of May 23, 2006, to the Indenture dated October X 8, 2003, for the 11% Senior Secured Notes due 2010, among Neenah Foundry Company, the guarantors named therein, and the Bank of New York, as Trustee 10.1 Amendment No. 3 to Loan and Security Agreement, dated as of May 19, 2006, by and X among Neenah Foundry Company, its subsidiaries party thereto, the various lenders party thereto and Fleet Capital Corporation, as agent 10.2 Letter Agreement, dated May 18, 2006 X 99.1 Securities Purchase Agreement, dated as of May 19, 2006 X 99.2 Stock Purchase Agreement, dated as of May 19, 2006 X 99.3 Transfer Notice, dated as of May 19, 2006 X 99.4 Response Letter, dated May 22, 2006 X
E-1 EX-3.1 2 c05620exv3w1.txt AMENDMENT TO BYLAWS EXHIBIT 3.1 ACP HOLDING COMPANY BYLAW AMENDMENT RESOLVED, that Section 4 of Article III of the Amended and Restated Bylaws of ACP Holding Company be and hereby is amended to read in its entirety as follows: Section 4. Vacancies. Unless otherwise provided by the corporation's certificate of incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority vote of the holders of the corporation's outstanding stock entitled to vote thereon, or may be filled by the vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided. EX-4.1 3 c05620exv4w1.txt SUPPLEMENTAL INDENTURE EXHIBIT 4.1 SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of May 23, 2006, among Neenah Foundry Company, a Wisconsin corporation (the "Company"), the Subsidiary Guarantors under the indenture referred to below, and The Bank of New York Trust Company, N.A., as successor trustee under the indenture referred to below (the "Trustee"). WITNESSETH WHEREAS, the Company and the Subsidiary Guarantors have heretofore executed and delivered to the Trustee an indenture (the "Indenture"), dated as of October 8, 2003 providing for the issuance of 13% Senior Subordinated Notes due 2013 (the "Notes"); WHEREAS, Section 4.21 of the Indenture and Section 12 of the Notes provide that, if a Change of Control (as defined in the Indenture) occurs, each Holder of Notes will have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of such Holder's Notes, at an offer price in cash equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon to the payment date; WHEREAS, Section 9.1(iv) of the Indenture and Section 10 of the Notes provide that the Company, the Subsidiary Guarantors and the Trustee may amend or supplement the Indenture or the Notes without the consent of any Holder of Notes to, among other things, make any change that does not adversely affect the legal rights of any Holder of a Note; WHEREAS, the Company and the Subsidiary Guarantors desire that Section 4.21 of the Indenture and Section 12 of the Notes be amended to provide that the obligation to repurchase Notes in the event of a Change of Control may be satisfied not only by a purchase by the Company but also by a purchase by a designee of the Company, as more fully described in Exhibit A and Exhibit B hereto. NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree as follows: 1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture. 2. AMENDMENT OF INDENTURE AND NOTES. Section 4.21 of the Indenture is hereby amended to read as provided in Exhibit A hereto. Section 12 of the notes is hereby amended to read as provided in Exhibit B hereto. The validity and enforceability of the foregoing amendments shall not be affected by the fact that they may not be affixed to or restated in any particular Note. 3. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 4. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. 5. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof. 6. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company and the Subsidiary Guarantors. IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written. Neenah Foundry Company By: /s/ Gary LaChey ------------------------------------- Name: Gary LaChey Title: Corporate Vice President - Finance & CFO Advanced Cast Products, Inc. Dalton Corporation Dalton Corporation, Warsaw Manufacturing Facility Dalton Corporation, Stryker Machining Facility Co. Dalton Corporation, Ashland Manufacturing Facility Dalton Corporation, Kendallville Manufacturing Facility Deeter Foundry, Inc. Gregg Industries, Inc. Mercer Forge Corporation A&M Specialties, Inc. Neenah Transport, Inc. Cast Alloys, Inc. Belcher Corporation Peerless Corporation As Subsidiary Guarantors By: /s/ Gary LaChey ------------------------------------- Name: Gary LaChey Title: Corporate Vice President - Finance & CFO The Bank of New York Trust Company, N.A., as Trustee By: Roxane Ellwanger ------------------------------------- Authorized Signatory Exhibit A Section 4.21 of the Indenture is hereby amended to read as follows (changes are indicated by underlining): SECTION 4.21. CHANGE OF CONTROL. (a) In the event that a Change of Control occurs, each Holder shall have the right, at such Holder's option, subject to the terms and conditions of this Indenture, to require the Company to repurchase OR CAUSE ITS DESIGNEE TO PURCHASE all or any part of such Holder's Notes (provided, that the principal amount of such Notes must be $1,000 or an integral multiple thereof) on a date to be established by the Company (the "Change of Control Payment Date") after the occurrence of such Change of Control, at a cash price (the "Change of Control Repurchase Price") equal to 101% of the aggregate principal amount thereof, together with accrued and unpaid interest thereon to, but excluding, the Change of Control Payment Date. (b) In the event that, pursuant to this Section 4.21, the Company shall be required to commence an offer to purchase Notes (the "Change of Control Offer"), the Company shall follow the procedures set forth in this Section 4.21 as follows: (1) the Company shall prepare and mail, with a copy to the Trustee, or at the option of the Company and at the expense of the Company, mail by the Trustee, the Change of Control Offer to each Holder of Notes, within 30 days following the completion of the Senior Secured Notes Offer to Purchase, or if no Senior Secured Notes are outstanding at such time, within 30 days following a Change of Control; (2) the Change of Control Offer shall remain open for at least 30 and not more than 40 days (unless otherwise required by applicable law) following its commencement, except to the extent that a longer period is required by applicable law; (3) upon the expiration of a Change of Control Offer, the Company OR ITS DESIGNEE shall purchase all Notes tendered in response to the Change of Control Offer; (4) if the Change of Control Payment Date is on or after an interest payment record date and on or before the related Interest Payment Date, any accrued interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Noteholders who tender Notes pursuant to the Change of Control Offer; (5) the Company shall provide the Trustee with notice of the Change of Control Offer at least five Business Days before the commencement of any Change of Control Offer; and (6) on or before the commencement of any Change of Control Offer, the Company or the Trustee (upon the request and at the expense of the Company) shall send, by first-class mail, a notice to each of the Noteholders, which (to the extent consistent with this Indenture) shall govern the terms of the Change of Control Offer and shall state: (i) that the Change of Control Offer is being made pursuant to such notice and this Section 4.21 and that all Notes, or portions thereof, tendered will be accepted for payment; (ii) the Change of Control Repurchase Price (including the amount of accrued and unpaid interest) the Change of Control Payment Date and the Change of Control Put Date; (iii) that any Note, or portion thereof, not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company (OR ITS DESIGNEE) defaults in depositing Cash with the Paying Agent in accordance with the last paragraph of this clause (b) or such payment is prevented pursuant to Article XI, any Note, or portion thereof, accepted for payment pursuant to the Change of Control Offer (OTHER THAN THOSE NOTES PURCHASED BY THE COMPANY'S DESIGNEE) shall cease to accrue interest after the Change of Control Payment Date; (v) that Holders electing to have a Note, or portion thereof, purchased pursuant to a Change of Control Offer will be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Paying Agent (which may not for purposes of this Section 4.21, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) at the address specified in the notice prior to the close of business on the earlier of (a) the third Business Day prior to the Change of Control Payment Date and (b) the third Business Day following the expiration of the Change of Control Offer (such earlier date being the "Change of Control Put Date"); vi) that Holders will be entitled to withdraw their election, in whole or in part, if the Paying Agent (which may not for purposes of this Section 4.21, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) receives, up to the close of business on the Change of Control Put Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder is withdrawing and a statement that such Holder is withdrawing his election to have such principal amount of Notes purchased; and (vii) a brief description of the events resulting in such Change of Control. On or before the Change of Control PAYMENT Date, the Company OR ITS DESIGNEE shall (i) accept for payment Notes or portions thereof properly tendered pursuant to the Change of Control Offer on or before the Change of Control Payment Date, (ii) deposit with the Paying Agent Cash sufficient to pay the Change of Control Repurchase Price of all Notes or portions thereof so tendered and (iii) deliver to the Trustee Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof being purchased by the Company OR ITS DESIGNEE. The Paying Agent shall promptly mail to Holders of Notes so accepted payment in an amount equal to the Change of Control Repurchase Price (together with accrued and unpaid interest), and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note or Notes equal in principal amount to any unpurchased portion of the Notes surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Company OR ITS DESIGNEE to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws, rules and regulations are applicable in connection with the repurchase of Notes pursuant to Change of Control Offer. Exhibit B Section 12 of the Notes is hereby amended to read as follows (changes are indicated by underlining): 12. Change of Control. In the event of a Change of Control of the Company, each Holder of Notes will have the right to require the Company to repurchase (OR CAUSE ITS DESIGNEE TO REPURCHASE) all or any part (equal to $1,000 or an integral multiple thereof) of such Holder's Notes, at an offer price in cash equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon to the Change of Control Payment Date. EX-4.2 4 c05620exv4w2.txt SUPPLEMENTAL INDENTURE EXHIBIT 4.2 SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of May 23, 2006, among Neenah Foundry Company, a Wisconsin corporation (the "Company"), the Subsidiary Guarantors under the indenture referred to below, and The Bank of New York Trust Company, N.A., as successor trustee under the indenture referred to below (the "Trustee"). WITNESSETH WHEREAS, the Company and the Subsidiary Guarantors have heretofore executed and delivered to the Trustee an indenture (the "Indenture"), dated as of October 8, 2003 providing for the issuance of 11% Senior Secured Notes due 2010 (the "Notes"); WHEREAS, Section 4.21 of the Indenture and Section 12 of the Notes provide that, if a Change of Control (as defined in the Indenture) occurs, each Holder of Notes will have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of such Holder's Notes, at an offer price in cash equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon to the payment date; WHEREAS, Section 9.1(iv) of the Indenture and Section 10 of the Notes provide that the Company, the Subsidiary Guarantors and the Trustee may amend or supplement the Indenture or the Notes without the consent of any Holder of Notes to, among other things, make any change that does not adversely affect the legal rights of any Holder of a Note; WHEREAS, the Company and the Subsidiary Guarantors desire that Section 4.21 of the Indenture and Section 12 of the Notes be amended to provide that the obligation to repurchase Notes in the event of a Change of Control may be satisfied not only by a purchase by the Company but also by a purchase by a designee of the Company, as more fully described in Exhibit A and Exhibit B hereto. NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree as follows: 1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture. 2. AMENDMENT OF INDENTURE AND NOTES. Section 4.21 of the Indenture is hereby amended to read as provided in Exhibit A hereto. Section 12 of the notes is hereby amended to read as provided in Exhibit B hereto. The validity and enforceability of the foregoing amendments shall not be affected by the fact that they may not be affixed to or restated in any particular Note. 3. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 4. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. 5. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof. 6. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company and the Subsidiary Guarantors. IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written. Neenah Foundry Company By: /s/ Gary LaChey ------------------------------------- Name: Gary LaChey Title: Corporate Vice President - Finance & CFO Advanced Cast Products, Inc. Dalton Corporation Dalton Corporation, Warsaw Manufacturing Facility Dalton Corporation, Stryker Machining Facility Co. Dalton Corporation, Ashland Manufacturing Facility Dalton Corporation, Kendallville Manufacturing Facility Deeter Foundry, Inc. Gregg Industries, Inc. Mercer Forge Corporation A&M Specialties, Inc. Neenah Transport, Inc. Cast Alloys, Inc. Belcher Corporation Peerless Corporation As Subsidiary Guarantors By: /s/ Gary LaChey ------------------------------------- Name: Gary LaChey Title: Corporate Vice President - Finance & CFO The Bank of New York Trust Company, N.A., as Trustee By: Roxane Ellwanger ------------------------------------- Authorized Signatory Exhibit A Section 4.21 of the Indenture is hereby amended to read as follows (changes are indicated by underlining): SECTION 4.21. CHANGE OF CONTROL. (a) In the event that a Change of Control occurs, each Holder shall have the right, at such Holder's option, subject to the terms and conditions of this Indenture, to require the Company to repurchase OR CAUSE ITS DESIGNEE TO PURCHASE all or any part of such Holder's Notes (provided, that the principal amount of such Notes must be $1,000 or an integral multiple thereof) on a date to be established by the Company (the "Change of Control Payment Date") after the occurrence of such Change of Control, at a cash price (the "Change of Control Repurchase Price") equal to 101% of the aggregate principal amount thereof, together with accrued and unpaid interest thereon to, but excluding, the Change of Control Payment Date. (b) In the event that, pursuant to this Section 4.21, the Company shall be required to commence an offer to purchase Notes (the "Change of Control Offer"), the Company shall follow the procedures set forth in this Section 4.21 as follows: (1) the Company shall prepare and mail, with a copy to the Trustee, or at the option of the Company and at the expense of the Company, mail by the Trustee, the Change of Control Offer within 30 days following a Change of Control to each Holder of Notes; (2) the Change of Control Offer shall remain open for at least 30 and not more than 40 days (unless otherwise required by applicable law) following its commencement, except to the extent that a longer period is required by applicable law; (3) upon the expiration of a Change of Control Offer, the Company OR ITS DESIGNEE shall purchase all Notes tendered in response to the Change of Control Offer; (4) if the Change of Control Payment Date is on or after an interest payment record date and on or before the related Interest Payment Date, any accrued interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Noteholders who tender Notes pursuant to the Change of Control Offer; (5) the Company shall provide the Trustee with notice of the Change of Control Offer at least five Business Days before the commencement of any Change of Control Offer; and (6) on or before the commencement of any Change of Control Offer, the Company or the Trustee (upon the request and at the expense of the Company) shall send, by first-class mail, a notice to each of the Noteholders, which (to the extent consistent with this Indenture) shall govern the terms of the Change of Control Offer and shall state: (i) that the Change of Control Offer is being made pursuant to such notice and this Section 4.21 and that all Notes, or portions thereof, tendered will be accepted for payment; (ii) the Change of Control Repurchase Price (including the amount of accrued and unpaid interest) the Change of Control Payment Date and the Change of Control Put Date; (iii) that any Note, or portion thereof, not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company (OR ITS DESIGNEE) defaults in depositing Cash with the Paying Agent in accordance with the last paragraph of this clause (b) or such payment is prevented pursuant to this Indenture, any Note, or portion thereof, accepted for payment pursuant to the Change of Control Offer (OTHER THAN THOSE NOTES PURCHASED BY THE COMPANY'S DESIGNEE) shall cease to accrue interest after the Change of Control Payment Date; (v) that Holders electing to have a Note, or portion thereof, purchased pursuant to a Change of Control Offer will be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Paying Agent (which may not for purposes of this Section 4.21, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) at the address specified in the notice prior to the close of business on the earlier of (a) the third Business Day prior to the Change of Control Payment Date and (b) the third Business Day following the expiration of the Change of Control Offer (such earlier date being the "Change of Control Put Date"); (vi) that Holders will be entitled to withdraw their election, in whole or in part, if the Paying Agent (which may not for purposes of this Section 4.21, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) receives, up to the close of business on the Change of Control Put Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder is withdrawing and a statement that such Holder is withdrawing his election to have such principal amount of Notes purchased; and (vii) a brief description of the events resulting in such Change of Control. On or before the Change of Control PAYMENT Date, the Company OR ITS DESIGNEE shall (i) accept for payment Notes or portions thereof properly tendered pursuant to the Change of Control Offer on or before the Change of Control Payment Date, (ii) deposit with the Paying Agent Cash sufficient to pay the Change of Control Repurchase Price of all Notes or portions thereof so tendered and (iii) deliver to the Trustee Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof being purchased by the Company OR ITS DESIGNEE. The Paying Agent shall promptly mail to Holders of Notes so accepted payment in an amount equal to the Change of Control Repurchase Price (together with accrued and unpaid interest), and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note or Notes equal in principal amount to any unpurchased portion of the Notes surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Company OR ITS DESIGNEE to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws, rules and regulations are applicable in connection with the repurchase of Notes pursuant to Change of Control Offer. Exhibit B Section 12 of the Notes is hereby amended to read as follows (changes are indicated by underlining): 12. Change of Control. In the event of a Change of Control of the Company, each Holder of Notes will have the right to require the Company to repurchase (OR CAUSE ITS DESIGNEE TO REPURCHASE) all or any part (equal to $1,000 or an integral multiple thereof) of such Holder's Notes, at an offer price in cash equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon to the Change of Control Payment Date. EX-10.1 5 c05620exv10w1.txt AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT Exhibit 10.1 AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT This Amendment No. 3 to Loan and Security Agreement (this "Amendment") dated as of May 19, 2006, is by and among Borrowers (as defined below), the undersigned Lenders and Bank of America, N.A., successor to Fleet Capital Corporation, as Agent for the Lenders who are from time to time party to that certain Loan and Security Agreement (as amended from time to time, and as amended hereby, the "Loan Agreement") dated as of October 8, 2003, by and among Neenah Foundry Company, a Wisconsin corporation ("Neenah"), as a Borrower, the Subsidiaries of Neenah that are party thereto as Borrowers (Neenah and such Subsidiaries are collectively, "Borrowers" and each, a "Borrower"), Fleet Capital Corporation, as Agent and as a Lender, Wachovia Capital Finance Corporation (Central), f/k/a Congress Financial Corporation (Central), as Syndication Agent and as a Lender, General Electric Capital Corporation, as Documentation Agent and as a Lender, and the other Lenders party thereto. All capitalized terms used in this Amendment and not otherwise defined in this Amendment shall have the same meanings herein as in the Loan Agreement. Borrowers have informed Agent and Lenders that on or before July 15, 2006 Tontine Capital Partners, L.P., a Delaware limited partnership ("Tontine") may be purchasing additional shares of the outstanding Voting Stock of Ultimate Parent so that Tontine may hold a majority of shares of the outstanding Voting Stock of Ultimate Parent (the "Tontine Purchase Transaction"). If the Tontine Purchase Transaction involves the purchase of sufficient shares of the Voting Stock, the consummation of the Tontine Purchase Transaction would constitute an Event of Default under subsection 10.1.10 of the Loan Agreement, since Tontine Capital Partners, L.P. is not currently a Permitted Holder under the Loan Agreement. Borrowers have requested that Agent and Lenders agree to amend the Loan Agreement in several respects so as to permit the Tontine Purchase Transaction to be consummated without resulting in an Event of Default under subsection 10.1.10 of the Loan Agreement. Subject to each of the terms and conditions set forth herein, Agent and the undersigned Lenders have agreed to the request described above. Now, therefore, the parties hereto hereby agree as follows: 1. Amendments. Subject to the prior satisfaction of the conditions set forth in Section 2 of this Amendment, and in reliance on the representations and warranties set forth in Section 3 of this Amendment, the parties hereto agree to amend the Loan Agreement as follows: (a) Subsection 8.2.6(i)(d) of the Loan Agreement is hereby amended and restated in its entirety, as follows: "(d) repayments or prepayments of principal amounts owing under the Subordinated Bond Documents, redemptions or repurchases of Subordinated Bonds in open-market transactions or otherwise or payments of Deferrable Interest (excluding payments of Deferrable Interest made pursuant to the foregoing clause (c)), so long as both immediately prior to and after giving effect to any such repayment, prepayment, redemption or repurchase, (1) no more than $20,000,000 in the aggregate has been applied toward such repayments, prepayments, redemptions and repurchases and payments of Deferrable Interest (excluding payments of Deferrable Interest made pursuant to the foregoing clause (c)) during the Term, (2) no Event of Default exists, (3) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such repayment, prepayment, redemption or repurchase (giving effect to such repayment, prepayment, redemption, repurchase or payment of Deferrable Interest for each day in such thirty (30) day period) is not less than $17,500,000 and (4) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such repayment, prepayment, redemption, repurchase or payment of Deferrable Interest is not less than $17,500,000; provided, that in no event will any such repayment or prepayment be financed with Revolving Credit Loans if such prepayment or repayment is required due to a mandatory redemption of Subordinated Bonds resulting from a "Change of Control" under the Subordinated Bond Documents that was caused by the consummation of the Tontine Purchase Transaction;" (b) Subsection 10.1.10 of the Loan Agreement is hereby amended and restated in its entirety, as follows: "10.1.10. Change of Ownership. (a) any transaction is consummated the result of which is that any Person other than the Permitted Holders becomes the beneficial owner, directly or indirectly, of, in the aggregate, more than 50% of the total Voting Stock of Ultimate Parent, whether as a result of the purchase of Securities of Ultimate Parent then outstanding, the issuance of Securities of Ultimate Parent, any merger, consolidation, liquidation or dissolution of Ultimate Parent or otherwise; (b) Continuing Directors no longer constitute a majority of the members of the board of directors of any of Neenah, Parent or Ultimate Parent; (c) Ultimate Parent shall cease to own and control, beneficially and of record (directly or indirectly), 100% of the issued and outstanding Securities of Parent; (d) Parent shall cease to own and control, beneficially and of record (directly or indirectly), 100% of the issued and outstanding Securities of Neenah; (e) Neenah shall cease to own and control, beneficially and of record (directly or indirectly), 100% of the issued and outstanding Securities of each other Borrower and each of its other Subsidiaries; (f) any "Change of Control" under and as defined in the Secured Bond Indenture shall occur, other than such a "Change of Control" occurring as a result of the consummation of the Tontine Purchase Transaction, or the selection of a majority of the members of the board of directors of Ultimate Parent by Tontine Capital Partners, L.P.; or -2- (g) any "Change of Control" under and as defined in the Subordinated Bond Indenture shall occur, other than such a "Change of Control" occurring as a result of the consummation of the Tontine Purchase Transaction, or the selection of a majority of the members of the board of directors of Ultimate Parent by Tontine Capital Partners, L.P." (c) The definition of the term Continuing Director contained in Appendix A to the Loan Agreement is hereby amended and restated in its entirety, as follows: "Continuing Director -- as of any date of determination, any member of the board of directors of Neenah, Parent or Ultimate Parent who (i) was a member of such board of directors as of the date of the Agreement, (ii) was nominated for election or elected to such board of directors with the affirmative vote of a majority of the Continuing Directors who were members of such board of directors at the time of such nomination or election or (iii) was selected by Tontine Capital Partners, L.P., MacKay Shields LLC, Citicorp Mezzanine III, L.P. or the Trust Company of the West." (d) The definition of the term Permitted Holders contained in Appendix A to the Loan Agreement is hereby amended and restated in its entirety, as follows: "Permitted Holders -- each of Tontine Capital Partners, L.P., MacKay Shields LLC, Citicorp Mezzanine III, L.P., Metropolitan Life Insurance Company, Exis Differential Holdings, Ltd., TCW Shared Opportunity Fund II, L.P., Shared Opportunity Fund IIB LLC, TCW Shared Opportunity Fund IV, L.P., TCW Shared Opportunity Fund IVB, L.P., AIMCO CDO, Series 2000-A, TCW High Income Partners, Ltd. and TCW High Income Partners II, Ltd., together with the Related Persons and the Affiliates of each of such Persons." (e) A new definition of the term Tontine Purchase Transaction is hereby inserted into Appendix A to the Loan Agreement, in appropriate alphabetical order, as follows: "Tontine Purchase Transaction -- the purchase by Tontine Capital Partners, L.P., a Delaware limited partnership, of a portion of the Voting Stock of Ultimate Parent pursuant to (i) a Securities Purchase Agreement dated as of May 19, 2006 among Tontine Capital Partners, L.P. and certain holders of such Voting Stock and (ii) a Stock Purchase Agreement dated as of May 19, 2006 among Tontine Capital Partners, L.P. and certain holders of such Voting Stock." -3- 2. Conditions to Effectiveness. The effectiveness of this Amendment shall be subject to the prior satisfaction of the following conditions: (a) Agent shall have received an execution version of this Amendment signed by Borrowers, Agent and Majority Lenders; (b) Agent shall have received fully executed copies of the agreements evidencing the Tontine Purchase Transaction, including without limitation that certain Securities Purchase Agreement and that certain Stock Purchase Agreement, each of even date herewith; and (c) no Default or Event of Default shall be in existence. 3. Representations and Warranties. To induce Agent and the Lenders party hereto to execute and deliver this Amendment, each Borrower hereby represents and warrants to Lenders that, after giving effect to this Amendment: (a) All representations and warranties contained in the Loan Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of this Amendment, in each case as if then made, other than representations and warranties that expressly relate solely to an earlier date (in which case such representations and warranties were true and accurate on and as of such earlier date); (b) No Default or Event of Default has occurred and is continuing; and (c) The execution and delivery by such Borrower of this Amendment does not require the consent or approval of any Person, except such consents and approvals as have been obtained. 4. Scope. This Amendment shall have the effect of amending the Loan Agreement and the other Loan Documents as appropriate to express the agreements contained herein. In all other respects, the Loan Agreement and the other Loan Documents shall remain in full force and effect in accordance with their respective term. 5. Reaffirmation and Confirmation. Each Borrower hereby ratifies, affirms, acknowledges and agrees that the Loan Agreement and the other Loan Documents represent the valid, enforceable and collectible obligations of such Borrower, and each Borrower further acknowledges that there are no existing claims, defenses, personal or otherwise, or rights of setoff whatsoever with respect to the Loan Agreement or any of the Loan Documents. Each Borrower hereby agrees that this Amendment in no way acts as a release or relinquishment of the Liens and rights securing payments of the Obligations. The Liens and rights securing payment of the Obligations are hereby ratified and confirmed by each Borrower in all respects. 6. Counterparts. This Amendment may be executed in counterpart and by different parties hereto in separate counterparts, each of which, when taken together, shall constitute but one and the same instrument. -4- 7. Expenses. All of Agent's reasonable costs and expenses, including, without limitation, attorney's fees, incurred in connection with the preparation of this Amendment and all related documents shall be paid by Borrowers upon the request of Agent. -5- IN WITNESS WHEREOF, this Amendment has been duly executed as of the date first above written. BORROWERS: NEENAH FOUNDRY COMPANY By /s/ Gary LaChey Its Corporate Vice President and Chief Financial Officer DEETER FOUNDRY, INC. By /s/ Gary LaChey Its Corporate Vice President and Chief Financial Officer MERCER FORGE CORPORATION By /s/ Gary LaChey Its Corporate Vice President and Chief Financial Officer DALTON CORPORATION By /s/ Gary LaChey Its Corporate Vice President and Chief Financial Officer DALTON CORPORATION, STRYKER MACHINING FACILITY CO. By /s/ Gary LaChey Its Corporate Vice President and Chief Financial Officer Signature Page to Amendment No. 3 to Loan and Security Agreement DALTON CORPORATION, WARSAW MANUFACTURING FACILITY By /s/ Gary LaChey Its Corporate Vice President and Chief Financial Officer ADVANCED CAST PRODUCTS, INC. By /s/ Gary LaChey Its Corporate Vice President and Chief Financial Officer GREGG INDUSTRIES, INC. By /s/ Gary LaChey Its Corporate Vice President and Chief Financial Officer A & M SPECIALTIES, INC. By /s/ Gary LaChey Its Corporate Vice President and Chief Financial Officer NEENAH TRANSPORT, INC. By /s/ Gary LaChey Its Corporate Vice President and Chief Financial Officer DALTON CORPORATION, KENDALLVILLE MANUFACTURING FACILITY By /s/ Gary LaChey Its Corporate Vice President and Chief Financial Officer Signature Page to Amendment No. 3 to Loan and Security Agreement BANK OF AMERICA, N.A., successor to FLEET CAPITAL CORPORATION, as Agent and as a Lender By /s/ Robert Lund Its Senior Vice President WACHOVIA CAPITAL FINANCE CORPORATION (CENTRAL), f/k/a CONGRESS FINANCIAL CORPORATION (CENTRAL), as Syndication Agent and as a Lender By /s/ Laura O. Wheeland Its Vice President GENERAL ELECTRIC CAPITAL CORPORATION, as Documentation Agent and as a Lender By /s/ Bond Harberts Its Duly Authorized Signatory THE CIT GROUP/BUSINESS CREDIT, INC., as a Lender By ---------------------------------------- Its ---------------------------------------- Signature Page to Amendment No. 3 to Loan and Security Agreement EX-10.2 6 c05620exv10w2.txt LETTER AGREEMENT EXHIBIT 10.2 May 18, 2006 Neenah Foundry Company 2121 Brooks Avenue Neenah, Wisconsin 54956 Attention: William Barrett Re: Purchase of 11% Notes and 13% Notes Issued by Neenah Foundry Company ("NEENAH") by Tontine Capital Partners, L.P. and its affiliates ("TONTINE") Dear Bill: As you are aware, Tontine has agreed to acquire up to 16,819,025 shares of common stock ("COMMON STOCK") of ACP Holding Company ("ACP") and warrants to purchase 20,992,053 shares of Common Stock from certain stockholders of ACP, plus certain additional shares of Common Stock from certain officers, which will result in a "Change of Control" under the Indentures identified in this letter agreement (the "CHANGE OF CONTROL TRANSACTION"). As a result of the Change of Control Transaction, Neenah will be required to offer to purchase (the "OFFER"): (1) certain 13% Senior Subordinated Notes due 2013 (the "13% NOTES") pursuant to section 4.21 of that certain Indenture dated October 8, 2003, between Neenah, certain subsidiaries of Neenah and the Bank of New York ("BONY"), as trustee (the "13% INDENTURE"), and (2) certain 11% Senior Secured Notes due 2010 (the "11% NOTES" and together with the 13% Notes, the "NOTES") pursuant to section 4.21 of that certain Indenture dated October 8, 2003, between Neenah, certain subsidiaries of Neenah and BONY, as trustee (the "11% INDENTURE" and together with the 13% Indenture, the "INDENTURES"). The purpose of this letter agreement is to allow for Tontine to acquire directly and for its own benefit the Notes, if any, that are properly tendered in the Offer in connection with the Change of Control Transaction. In consideration of Tontine's agreement to purchase the tendered Notes, Neenah hereby agrees to seek amendment of each of the Indentures in the form attached as Exhibit A to this letter agreement to permit Tontine to act as Neenah's designee to purchase the Notes properly tendered in the Offer. Neenah further agrees to name Tontine as its designee in connection with the Offer and to take such other commercially reasonable steps as may be necessary or required to permit Tontine to acquire the properly tendered Notes; provided, however, that Tontine shall be named as Neenah's designee under the Indentures only in connection with the purchase of Notes in the Offer and for no other purpose and Tontine shall have no obligation to act as Neenah's designee in connection with the purchase of Notes other than in connection with the Offer and the Change of Control Transaction. In consideration of Neenah's agreement to allow Tontine to purchase the tendered Notes, Tontine agrees that if properly appointed as Neenah's designee under each of the Indentures, Tontine will purchase all of the Notes properly tendered to Neenah, if any, pursuant to the Offer, at a purchase price per Note equal to the purchase price required under section 4.21 of each Indenture, as applicable, and otherwise in compliance with the payment terms provided under section 4.21 of each Indenture, as applicable. Notwithstanding the appointment by Neenah of Tontine as its designee under the Indentures as herein provided, Neenah shall continue to comply with the terms and conditions of the Indentures, including, without limitation, the terms and conditions contained in section 4.21 of each Indenture, other than those terms and conditions specifically relating to the purchase of and payment for the Notes by Neenah's designee in the Offer. Each of Neenah and Tontine acknowledges that it will be responsible for its respective costs related to the Offer, including but not limited to any attorneys fees or fees paid to any paying agent or information agent. Each of Neenah and Tontine further agrees that Tontine's obligations under this letter agreement shall be conditioned upon: (1) the closing of the Change of Control Transaction and (2) the consent of Fleet Capital Corporation ("FLEET") under that certain Loan and Security Agreement dated October 8, 2003 between Neenah, its subsidiaries and Fleet, as amended, to the transactions contemplated by this letter agreement and the Change of Control Transaction. If the foregoing represents your understanding of our agreements, please sign a copy of this letter in the space provided below and return it to my attention. Sincerely, Tontine Capital Partners, L.P. By: Tontine Capital Management, L.L.C., its general partner By: /s/ JEFFREY L. GENDELL ----------------------------------- Name: Jeffrey L. Gendell Title: Managing Member Agreed as of the date set forth above: Neenah Foundry Company By: /s/ WILLIAM BARRETT ---------------------------------- William Barrett President and Chief Executive Officer EX-99.1 7 c05620exv99w1.txt SECURITIES PURCHASE AGREEMENT EXHIBIT 99.1 SECURITIES PURCHASE AGREEMENT THIS SECURITIES PURCHASE AGREEMENT (this "AGREEMENT") is made this 18th day of May, 2006, by and between (i) TONTINE CAPITAL PARTNERS, L.P., a Delaware limited partnership (the "BUYER"), (ii) MACKAY SHIELDS LLC, a Delaware limited liability company ("MACKAY SHIELDS"), (iii) CITICORP CAPITAL INVESTORS, LTD., CVC CAPITAL FUNDING, LP and CITICORP MEZZANINE III, L.P. (collectively, "CM-III"), (iv) the TRUST COMPANY OF THE WEST parties set forth on the signature pages hereto (collectively, "TCW" and with MacKay Shields and CM-III, the "MAJOR SELLERS"), (v) METROPOLITAN LIFE INSURANCE COMPANY ("MET LIFE"), and (vi) those additional parties who may become signatories hereto pursuant to SECTION 3 hereof (collectively, with the Major Sellers and Met Life, the "SELLERS"; and each of the Sellers is individually referred to herein as a "SELLER"). RECITAL Each Seller desires to sell to the Buyer and the Buyer desires to purchase from each Seller the number of shares (the "SHARES") of the common stock (the "COMMON STOCK") of ACP Holding Company, a Delaware corporation with its main office located in Neenah, Wisconsin (the "COMPANY"), and the number of warrants to purchase shares of Common Stock (the "WARRANTS" and together with the Shares, the "ACP SECURITIES"), set forth next to such Seller's name on Schedule 1 attached hereto, all on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises, covenants and agreements hereinafter set forth, the parties hereby agree as follows: AGREEMENTS SECTION 1. SALE AND PURCHASE OF ACP SECURITIES. (A) On the terms and subject to the conditions hereinafter set forth, each Seller agrees to sell, transfer and assign the ACP Securities set forth next to such Seller's name on Schedule 1 hereto, free and clear of all security interests, liens, claims, encumbrances, pledges, options, charges and restrictions (on transferability or otherwise), except for any restrictions on transfer arising pursuant to the Securities Act of 1933, as amended (the "SECURITIES ACT") or pursuant to that certain Stockholders Agreement, dated as of October 8, 2003 (the "STOCKHOLDERS AGREEMENT"), among the Company, the Major Sellers, Met Life and the additional stockholders party thereto, to the Buyer and the Buyer agrees to purchase such ACP Securities from each such Seller. The purchase price for the Shares shall be an amount in cash equal to $1.80 per Share and the purchase price for the Warrants shall be an amount in cash equal to $1.79 per Warrant. The total purchase price payable to each Seller is set forth next to each Seller's name on Schedule 1 hereto and shall be referred to as the "PURCHASE PRICE." SECTION 2. CLOSING. (A) Subject to the terms of this Agreement, the closing of the purchase and sale of the ACP Securities (the "CLOSING") shall occur on or before the date that is five (5) days after the date that the last of the conditions set forth in SECTION 7 and SECTION 8 have been satisfied, or at such other place, date and time as is mutually agreed to by the Buyer and the Sellers (the "CLOSING DATE"). (B) At the Closing, each Seller shall transfer such Seller's ACP Securities to the Buyer and the Buyer shall deliver the Purchase Price in immediately available United States funds to each such Seller by wire transfer to an account designated by each Seller to the Buyer in writing at least two business days prior to the Closing Date. SECTION 3. COMPLIANCE WITH STOCKHOLDERS AGREEMENT. (A) RIGHT OF FIRST OFFER; TAG-ALONG OFFER. Solely for purposes of this SECTION 3, capitalized terms used but not defined in this Agreement shall have the meanings given to them in the Stockholders Agreement. The Buyer acknowledges that MacKay Shields and CM-III intend to provide a Transfer Notice and First Option, in substantially the form attached hereto as Exhibit A, together with an executed copy of this Agreement, to the Company in accordance with Section 3.2 of the Stockholders Agreement. If the Company fails to respond to the First Option within the Election Period or declines to exercise the First Option, MacKay Shields and CM-III intend to provide a Transfer Notice and Second Option to all 5% Stockholders who are not Sellers (the "OTHER 5% STOCKHOLDERS"), if any. Any such Transfer Notice and Second Option shall also include an executed copy of this Agreement and a Participation Offer, which shall be joined by TCW, in accordance with Section 3.4 of the Stockholders Agreement. Each of the Sellers hereby waives for all purposes any right to (i) receive a Second Option, (ii) receive a Participation Offer and (iii) participate in a Tag-Along Transaction, in each case with respect to the transactions contemplated by this Agreement. (B) TERMINATION. In the event that the Company or any Other 5% Stockholder properly elects to purchase all of the ACP Securities of MacKay Shields and CM-III pursuant to Section 3.2 of the Stockholders Agreement, this Agreement shall terminate as to the Buyer and all of the Sellers in its entirety in accordance with the provisions of SECTION 9, effective as of the date such purchase of all of the ACP Securities of MacKay Shields and CM-III is consummated; provided, however, that in the event that the Company or any Other 5% Stockholder properly elects to purchase all of the ACP Securities of either one of MacKay Shields or CM-III and not the other, this Agreement shall terminate only as to MacKay Shields or CM-III, as applicable, in accordance with the provisions of SECTION 9. (C) INFORMATION. The applicable Major Sellers shall provide the Buyer with a copy of the final Transfer Notice, First Option and, if applicable, Second Option (including the Participation Offer) delivered to the Company and any Other 5% Stockholders, as applicable, and shall provide the Buyer with copies of any written responses or other material communications received by any applicable Major Seller from the Company or any Other 5% Stockholder in connection with or related to the Transfer Notice, the First Option or any Second Option 2 (including the Participation Offer) and shall otherwise keep the Buyer reasonably informed of all material developments and communications with respect to the Transfer Notice, the First Option and any Second Option (including the Participation Offer). Any material written information to be provided by the applicable Major Sellers to the Company or any Other 5% Stockholders after the date of this Agreement, including any Transfer Notice and Second Option (including the Participation Offer), in each case with regard to the Transfer Notice, the First Option or any Second Option (including the Participation Offer) or the transactions contemplated by this Agreement, shall be provided to the Buyer at least two (2) business days prior to being provided to the Company or any Other 5% Stockholder for Buyer's review and approval, which approval shall not be unreasonably withheld or delayed; provided, however, that if the parties dispute in good faith the form and/or substance of such written information, the Major Sellers are nonetheless permitted to provide such written information as is required to be in compliance with their respective obligations under the Stockholders Agreement. (D) EFFECT OF EXERCISE OF TAG-ALONG RIGHTS. The Buyer is prepared to purchase from the Sellers an aggregate of up to 16,819,025 Shares and 20,992,053 Warrants (in the aggregate, the "SECURITIES THRESHOLD"). If (i) the Major Sellers make a Participation Offer pursuant to Section 3.4 of the Stockholders Agreement and (ii) the total number of ACP Securities tendered in response to such Participation Offer by Other 5% Stockholders, if any, when aggregated with the ACP Securities to be sold by the Sellers to the Buyer hereunder exceeds the Securities Threshold, then the total number of ACP Securities that the Sellers (including the Major Sellers) shall be entitled to sell to the Buyer hereunder shall be reduced to the Securities Threshold and the specific number of ACP Securities each Seller may sell shall be determined in accordance with the formula set out in Section 3.4(a) of the Stockholders Agreement. In no event will the Buyer be obligated to purchase an amount of ACP Securities totaling more than the Securities Threshold. (E) JOINDER. Any Tag-Along Participating Stockholder desiring to sell ACP Securities to the Buyer hereunder shall execute a joinder (a "JOINDER") to this Agreement in substantially the form attached hereto as Exhibit B, at which time it will become a "Seller" hereunder, and Schedule 1 shall be amended to include the number of ACP Securities to be sold by the Tag-Along Participating Stockholder and the Purchase Price therefor. In the event that the total number of ACP Securities sold to the Buyer hereunder must be reduced to the Securities Threshold in accordance with SECTION 3(D) above, the number of ACP Securities and the Purchase Price next to each Seller's name on Schedule 1 hereto shall be amended accordingly. (F) OBLIGATION TO BE BOUND. If the Stockholders Agreement does not terminate in accordance with its terms pursuant to Section 5.6 thereof as a result of the transactions contemplated by this Agreement, Buyer agrees, pursuant to Section 4.1 of the Stockholders Agreement, that it shall take and hold the ACP Securities that it purchases from the Sellers subject to the provisions and upon the conditions specified in the Stockholders Agreement and that at the Closing it will execute any instrument or agreement reasonably requested by the Sellers to effectuate such obligation. (G) OBSERVATION RIGHTS. In the event that the total number of ACP Securities sold to the Buyer hereunder must be reduced to the Securities Threshold in accordance with 3 SECTION 3(D) above and any Major Seller will continue to beneficially own or have investment authority over at least 5% of the total outstanding Common Stock, on a fully diluted basis, following the Closing (a "CONTINUING MAJOR SELLER"), Tontine shall use its commercially reasonable efforts to cause the Company and its subsidiaries to extend Observation Rights (as defined below) to each such Continuing Major Seller until such Continuing Major Seller no longer beneficially owns or has investment authority over at least 5% of the total outstanding Common Stock, on a fully diluted basis. For purposes of this SECTION 3(G), the term "OBSERVATION RIGHTS" shall mean the right of a Continuing Major Seller (i) to receive prior written notice of all meetings of the boards of directors of the Company and its subsidiaries and their respective committees at the same time that notice of such meetings is given to the directors, (ii) to have a representative (an "OBSERVER") of such Continuing Major Seller attend as an observer all meetings (including telephonic meetings) of the boards of directors of the Company and its subsidiaries and their respective committees, (iii) to receive all materials and information provided from time to time to the members of the boards of directors of the Company and its subsidiaries and their respective committees and (iv) to be reimbursed for the out-of-pocket expenses of the Observer in attending such meetings on the same basis that the directors are reimbursed for their out-of-pocket expenses. For the avoidance of doubt, the Observer shall not be deemed to be a member of the board of directors or any committee of the Company and its subsidiaries. Notwithstanding anything to the contrary contained herein, the Observation Rights shall be conditioned on the applicable Continuing Major Seller and its Observer (x) maintaining the confidentiality of all material non-public material and information provided to the Observer and the boards of directors and committees of the Company and its subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its subsidiaries and provided to the Continuing Major Seller and the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Continuing Major Seller and its affiliates and their respective managers, directors, officers, representatives, advisers, auditors, examiners and counsel and the respective investors, partners, members, employees and lenders of the Continuing Major Seller and its affiliates who have agreed in writing to observe the confidentiality provisions of this SECTION 3(G), and (B) disclose such material and information in accordance with applicable laws or legal process, in any litigation or other proceedings under this Agreement or the Stockholders Agreement or in accordance with regulatory requirements, and (y) complying with applicable securities laws and regulations concerning the misuse of material nonpublic information. For the avoidance of doubt, the provisions of this SECTION 3(G) are in addition to the rights of a Major Seller, if any, under Article II of the Stockholders Agreement. SECTION 4. HSR ACT FILING. In the event that, within five business days of the public announcement of this Agreement, one or more Other 5% Stockholder is identified, the Buyer shall have the option to file or cause to be filed with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice, a notification (the "HSR NOTIFICATION") under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), and the rules and regulations promulgated thereunder with respect to the transactions contemplated in this Agreement. Tontine shall file any such HSR Notification it determines to make as soon as practicable after such five-business day period. 4 SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each Seller hereby, severally and not jointly, represents and warrants to the Buyer as follows: (A) OWNERSHIP OF ACP SECURITIES. Such Seller is the beneficial owner of, or has the investment authority over, the ACP Securities identified next to the Seller's name on Schedule 1 hereto, which constitute all of the ACP Securities beneficially owned by such Seller or over which such Seller has investment authority (except as otherwise described on Schedule 1 hereto), and such ACP Securities are free and clear of any security interest, claim, lien, pledge, option, encumbrance or restriction (on transferability or otherwise) whatsoever, except for any restrictions on transfer arising pursuant to the Securities Act or pursuant to the Stockholders Agreement, and the delivery to the Buyer of such ACP Securities in the manner set forth in this Agreement will convey to the Buyer good and marketable title to such ACP Securities, free and clear of any security interest, claim, lien, pledge option, encumbrance or restriction (on transferability or otherwise) whatsoever, except for any restrictions on transfer arising pursuant to the Securities Act or pursuant to the Stockholders Agreement. (B) ORGANIZATION. Such Seller, if not an individual, has been duly organized and is validly existing and in good standing under the laws of the state of its formation, with the requisite power and authority to execute and deliver this Agreement and carry out its obligations hereunder, including its obligation to sell to the Buyer the ACP Securities set forth next to such Seller's name on Schedule 1 hereto. Such Seller, if an individual, has the legal capacity to enter into this Agreement and carry out his obligations hereunder, including his obligation to sell his ACP Securities to the Buyer. (C) AUTHORIZATION AND ENFORCEABILITY. This Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by, and duly and validly executed and delivered on behalf of such Seller, and no further approval or authorization is required. This Agreement (assuming the due authorization, execution and delivery by the other parties hereto) constitutes the valid and binding agreement of such Seller, enforceable in accordance with its terms, except as such enforceability may be limited by: (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally; (ii) equitable limitations on the availability of specific remedies; and (iii) principles of equity. (D) BROKERS AND FINDERS. Such Seller has not, and no person acting on behalf of such Seller has, employed any broker, agent or finder or incurred any liability for any brokerage fees, agents' commissions or finders' fees in connection with the transactions contemplated herein. (E) NO CONFLICTS. The execution, delivery and performance of this Agreement, as well as the consummation of the transactions contemplated hereby, will not (i) assuming the truth and accuracy of the Buyer's representations in SECTION 6(D) below, require such Seller to obtain the consent or approval of, or make any filing with, any person or public authority; (ii) conflict with or constitute or result in a breach or violation of, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on the ACP Securities identified next to such Seller's name on Schedule 1 5 hereto pursuant to any terms and provisions of any agreement or instrument to which such Seller is a party or by which such ACP Securities are bound; or (iii) violate any law, regulation, judgment or order applicable to such Seller. (F) NO LITIGATION. There is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority pending or threatened against such Seller that are reasonably likely to prohibit or restrain the ability of such Seller to consummate the transactions contemplated by this Agreement. SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer hereby represents and warrants to the Sellers as follows: (A) ORGANIZATION. The Buyer is a Delaware limited partnership, duly organized, validly existing and in good standing under the laws of the state of Delaware, with the requisite limited partnership power and authority to execute and deliver this Agreement and carry out its obligations hereunder, including its obligation to purchase the ACP Securities from the Sellers and pay the Purchase Price to the Sellers. (B) AUTHORIZATION AND ENFORCEABILITY. This Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by, and duly and validly executed and delivered on behalf of the Buyer, and no further approval or authorization is required. This Agreement (assuming the due authorization, execution and delivery by the other parties hereto) constitutes the valid and binding agreement of the Buyer enforceable in accordance with its terms, except as such enforceability may be limited by: (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally; (ii) equitable limitations on the availability of specific remedies; and (iii) principles of equity. (C) NO CONFLICTS. The execution, delivery and performance of this Agreement, as well as the consummation of the transactions contemplated hereby, will not (i) require the Buyer to obtain consent or approval of any person or public authority, except as provided in this Agreement, (ii) conflict with or constitute or result in a breach or violation of, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement or instrument to which the Buyer is a party; or (iii) violate any law, regulation, judgment or order applicable to the Buyer. (D) INVESTMENT REPRESENTATIONS. (i) The Buyer confirms that: (A) the ACP Securities will be acquired by the Buyer for investment only, for its own account and not as a nominee or agent and not with a view to the sale or distribution of any part thereof in violation of applicable Federal and state securities laws; and (B) the Buyer has no current intention of selling, granting participation in or otherwise distributing the ACP Securities in violation of applicable Federal and state securities laws. By executing this Agreement, the Buyer further represents that it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant 6 participation to such person, or to any third person, with respect to any of the ACP Securities in violation of applicable Federal and state securities laws. (ii) The Buyer understands that the ACP Securities have not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. (iii) The Buyer represents that it is an "Accredited Investor" as that term is defined in Rule 501 of Regulation D promulgated under the Securities Act, and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its purchase of the ACP Securities. (iv) The Buyer represents that it (A) is capable of bearing the economic risk of holding the unregistered ACP Securities for an indefinite period of time and has adequate means for providing for its current needs and contingencies, (B) can afford to suffer a complete loss of this investment and (C) understands all risk factors related to the purchase of the ACP Securities. (E) NO OTHER REPRESENTATIONS OR WARRANTIES. Notwithstanding anything contained in this Agreement to the contrary, Buyer acknowledges and agrees that no Seller is making any representations or warranties whatsoever, express or implied, beyond those expressly given by each Seller in SECTION 5 of this Agreement. (F) BROKERS AND FINDERS. Other than Rothschild Inc., neither the Buyer nor any person acting on behalf of the Buyer has employed any broker, agent or finder or incurred any liability for any brokerage fees, agents' commissions or finders' fees in connection with the transactions contemplated herein. The Buyer shall be solely responsible for the payment of any fees or commissions payable to Rothschild Inc. in connection with this transaction. (G) NO LITIGATION. There is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority pending or threatened against the Buyer that are reasonably likely to prohibit or restrain the ability of the Buyer to consummate the transactions contemplated by this Agreement. SECTION 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER. The obligation of the Buyer to purchase the ACP Securities is conditioned upon: (A) the truth and accuracy in all material respects of the representations and warranties of the Sellers set forth in SECTION 5 as of the dates and for the periods to which they relate, and at the Closing as though made on the Closing Date; (B) if the HSR Notification has been made under SECTION 4 of this Agreement, the waiting period under the HSR Act having expired or early termination having been granted; and 7 (C) the performance on or prior to the Closing Date by each Seller of all other obligations and covenants required to be performed or to be complied with by each Seller under this Agreement. SECTION 8. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLERS. The obligations of the Sellers hereunder are conditioned upon: (A) the truth and accuracy in all material respects of the representations and warranties of the Buyer set forth in SECTION 6 as of the dates and for the periods to which they relate, and at the Closing as though made on the Closing Date; (B) if the HSR Notification has been made under SECTION 4 of this Agreement, the waiting period under the HSR Act having expired or early termination having been granted; and (C) the performance on or prior to the Closing Date by the Buyer of all other obligations and covenants required to be performed or to be complied with by Buyer under this Agreement. SECTION 9. TERMINATION. (A) This Agreement and the transactions contemplated hereby shall terminate in their entirety (i) upon the mutual written consent of all of the parties hereto; or (ii) pursuant to SECTION 3(B) of this Agreement in the event that the Company or any Other 5% Stockholder purchases all of the ACP Securities of both MacKay Shields and CM-III. Notwithstanding the foregoing, this Agreement and the transactions contemplated hereby shall terminate solely with respect to the purchase and sale of ACP Securities as between the Buyer and a particular Seller as follows: (i) by the mutual written consent of the Buyer and such Seller; (ii) pursuant to SECTION 3(B) of this Agreement in the event that the Company or any Other 5% Stockholder purchases all of the ACP Securities of either one of MacKay Shields or CM-III and not the other; or (iii) upon the written notice by either the Buyer or such Seller to the other if the Closing has not occurred by that date which is 75 days from the date of this Agreement, provided that the terminating party is not in breach in any material respect of any of its obligations hereunder; and provided further, that if requests for additional information are made in connection with the HSR Notification, if any, such termination period shall be extended to that date which is 135 days from the date of this Agreement. (B) In the event of termination pursuant to SECTION 9(A) hereof, this Agreement shall terminate solely as it applies between the applicable parties, and the purchase and sale of the applicable Seller's ACP Securities hereunder shall be abandoned, without further action by any party hereto, each of the applicable parties shall be relieved of their duties and obligations arising under this Agreement after the date of such termination and such termination shall be without liability to any party hereto; provided, that no such termination shall relieve any party hereto from liability for any willful breach of this Agreement. For the avoidance of doubt, if this Agreement terminates pursuant to SECTION 9(A) with respect to the purchase and sale of 8 ACP Securities as between the Buyer and any particular Seller or Sellers, the Agreement shall remain in full force and effect as it relates to the Buyer and the remaining Sellers. SECTION 10. SURVIVAL OF REPRESENTATIONS. All representations and warranties made in Sections 5(a), (b) and (c) and Sections 6(a), (b) and (d) of this Agreement shall survive the Closing. All other representations and warranties made in Section 5 and Section 6 shall survive the Closing for a period of 12 months. Those covenants and agreements contained herein which by their terms apply in whole or in part after the Closing shall survive the Closing. The representations and warranties hereunder shall not be affected or diminished by any investigation at any time by or on behalf of the party for whose benefit such representations and warranties were made. SECTION 11. CONFIDENTIALITY. The parties acknowledge that the Company will be required to make appropriate disclosures and filings with respect to this Agreement and the transactions contemplated hereunder to satisfy its obligations under securities laws. Until such time as the Company makes such disclosures, however, neither the Buyer nor any Seller shall disclose to any person or entity, publicly or privately, the terms or existence of this Agreement or the negotiations or the transactions contemplated hereunder, except to their professional advisors, accountants and lawyers, management, employees, beneficial owners of such Seller's ACP Securities and their applicable agents and representatives, such parties as may be necessary to facilitate the transfer of such Seller's ACP Securities, the Company, any other Seller and the Other 5% Stockholders, if any, and as may be required pursuant to the Stockholder Agreement or by law and applicable regulation. SECTION 12. FURTHER ASSURANCES. At any time, and from time to time, the parties agree to prepare, execute and deliver all such further documents, instruments and agreements that may be reasonably requested by the Buyer or any Seller in order to effectuate and carry out any provision of this Agreement and the transactions provided for herein. SECTION 13. NOTICES. All notices, requests, demands and other communications which are required or permitted hereunder shall be in writing and shall be deemed to have been duly given: (a) when delivered personally; (b) on the following business day when sent by overnight courier; (c) on dispatch when sent by telecopy, so long as a copy of such communication is immediately thereafter mailed as provided in this SECTION 13; and (d) when mailed by registered or certified mail, postage prepaid, return receipt requested, to the Buyer and the Sellers at their respective addresses set forth on Schedule 1 hereto (or on any applicable Joinder hereto). SECTION 14. COOPERATION. Each of the parties hereto covenants that, unless this Agreement is terminated as to such party as provided herein, it will use its commercially reasonable efforts to consummate the transactions contemplated hereunder as soon as practicable, and that it will not willfully or intentionally breach this Agreement. Subject to the terms and conditions herein provided, each of the parties hereto agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things, in each case, necessary or appropriate to consummate and make effective the transactions contemplated by this Agreement. 9 SECTION 15. AMENDMENT OF BYLAWS. Each Major Seller shall use its commercially reasonable efforts to amend or cause the amendment of the Company's bylaws by consenting to such amendment, if such consent is required under the Stockholders Agreement, at or prior to the Closing to allow vacancies on the Company's board of directors to be filled by the then remaining directors. SECTION 16. SPECIFIC ENFORCEABILITY; REMEDIES. The parties hereto recognize and acknowledge that it may be impossible to measure in money the damages that would result to a party by reason of the breach of the terms of this Agreement and that in such event damages would be an inadequate remedy. Accordingly, the Buyer shall be entitled to the specific performance of the agreements and obligations of each Seller hereunder and each Seller shall be entitled to the specific performance of the agreements and obligations of the Buyer hereunder. If in such circumstances any party should institute an action or proceeding seeking specific enforcement of the provisions hereof, the party against which such action or proceeding is brought hereby waives the claim or defense that the party instituting such action or proceeding has an adequate remedy at law and hereby agrees not to assert in any such action or proceeding the claim or defense that such a remedy at law exists and shall waive or not assert any requirement to post bond in connection with seeking specific performance. The parties further agree that this provision is without prejudice to any other rights or remedies that the parties hereto may have at law or in equity for any failure to perform, or a breach of a representation or warranty under, this Agreement. SECTION 17. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without reference to principles of conflicts of law. SECTION 18. ENTIRE AGREEMENT; AMENDMENT. This Agreement supersedes any and all oral or written agreements heretofore made relating to the subject matter hereof and constitutes the entire agreement of the parties relating to the subject matter hereof. This Agreement may be amended only by a writing executed by the Buyer and by each Seller then a party hereto. SECTION 19. NO IMPLIED RIGHTS OR REMEDIES. Except as otherwise expressly provided herein, nothing herein expressed or implied is intended or shall be construed to confer upon or to give any person, other than the Buyer and each Seller, any rights or remedies under or by reason of this Agreement. SECTION 20. NO WAIVER, ETC. No failure on the part of any of the parties hereto to exercise, no delay in exercising and no course of dealing with respect to, any right or remedy hereunder will operate as a waiver thereof. No single or partial exercise of any right or remedy hereunder will preclude any other further exercise thereof or the exercise of any other right or remedy. SECTION 21. HEADINGS. The headings in this Agreement are inserted for convenience of reference only and shall not be a part of or control or affect the meaning of this Agreement. 10 SECTION 22. SUCCESSORS AND ASSIGNS. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns, heirs and legal representatives. SECTION 23. COUNTERPARTS; CONSTRUCTION. This Agreement and any amendments hereto may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed by facsimile, and such facsimile signature shall be deemed an original signature. Whenever used in this Agreement, the singular shall include the plural and vice versa (where applicable), the use of the masculine, feminine or neuter gender shall include the other genders (unless the context otherwise requires), the words "hereof," "herein," "hereto," "hereby," "hereunder," and other words of similar import refer to this Agreement as a whole (including all schedules and exhibits), the words "include," "includes" and "including" shall mean "include, without limitation," "includes, without limitation" and "including, without limitation," respectively. Each party has been represented by its own counsel in connection with the negotiation and preparation of this Agreement and, consequently, each party hereby waives any rule of law to the effect that any provision of this Agreement shall be interpreted or construed against the party whose counsel drafted that provision. SECTION 24. EXPENSES. Irrespective of whether the Closing is effected, the Buyer and each Seller shall pay the respective costs and expenses that they incur with respect to the negotiation, execution, delivery and performance of the Agreement, including all fees and expenses of agents, representatives, counsel, brokers and accountants. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. BUYER: TONTINE CAPITAL PARTNERS, L.P. By: Tontine Capital Management, L.L.C., its general partner By: /s/ Jeffrey L. Gendell ------------------------------------ Name: Jeffrey L. Gendell Title: Managing Member SELLERS: MACKAY SHIELDS LLC, as investment advisor for certain accounts By: /s/ Lucille Protas ------------------------------------ Lucille Protas Chief Administrative Officer CITICORP MEZZANINE III, L.P. By: /s/ Richard E. Mayberry, Jr. ------------------------------------ Name: Richard E. Mayberry, Jr. ---------------------------------- Title: Managing Directors --------------------------------- TCW SHARED OPPORTUNITY FUND II, L.P. By: TCW Investment Management Company, its Investment Manager By: /s/ C. Shawn Bookin ------------------------------------ Name: Shawn Bookin ---------------------------------- Title: Managing Director --------------------------------- By: /s/ Nicholas W. Tell, Jr. ------------------------------------ Name: Nicholas W. Tell, Jr. ---------------------------------- Title: Managing Director --------------------------------- S-1 SHARED OPPORTUNITY IIB, L.L.C. By: TCW Asset Management Company, as its Investment Adviser By: /s/ C. Shawn Bookin ------------------------------------ Name: C. Shawn Bookin ---------------------------------- Title: Managing Director --------------------------------- By: /s/ Nicholas W. Tell, Jr. ------------------------------------ Name: Nicholas W. Tell, JR. ---------------------------------- Title: Managing Director --------------------------------- TCW SHARED OPPORTUNITY FUND IV, L.P. By: TCW Asset Management Company, its Investment Adviser By: /s/ C. Shawn Bookin ------------------------------------ Name: C. Shawn Bookin ---------------------------------- Title: Managing Director --------------------------------- By: /s/ Nicholas W. Tell, Jr. ------------------------------------ Name: Nicholas W. Tell, JR. ---------------------------------- Title: Managing Director --------------------------------- TCW SHARED OPPORTUNITY FUND IVB, L.P. By: TCW Asset Management Company, its Investment Adviser By: /s/ C. Shawn Bookin ------------------------------------ Name: C. Shawn Bookin ---------------------------------- Title: Managing Director --------------------------------- By: /s/ Nicholas W. Tell, Jr. ------------------------------------ Name: Nicholas W. Tell, JR. ---------------------------------- Title: Managing Director --------------------------------- S-2 AIMCO CDO, SERIES 2000-A By: TCW Asset Management Company, its Advisor By: /s/ Larry A. Clark ------------------------------------ Name: Laryy A. Clark ---------------------------------- Title: Senior Vice President --------------------------------- TCW HIGH INCOME PARTNERS, LTD., [as Issuer] By: /s/ Michael K. Parks ------------------------------------ Name: Michael K. Parks ---------------------------------- Title: Managing Director --------------------------------- TCW HIGH INCOME PARTNERS II, LTD., [as Issuer] By: /s/ Michael K. Parks ------------------------------------ Name: Michael K. Parks ---------------------------------- Title: Managing Director --------------------------------- METROPOLITAN LIFE INSURANCE COMPANY By: /s/ Thomas C. Hoi ------------------------------------ Name: Thomas C. Hoi ---------------------------------- Title: Associate General Counsel --------------------------------- S-3 CITICORP CAPITAL INVESTORS, LTD. By: /s/ Richard E. Mayberry, Jr. ------------------------------------ Name: Richard E. Mayberry, Jr. ---------------------------------- Title: Managing Director --------------------------------- CVC CAPITAL FUNDING, LP By: /s/ Richard E. Mayberry, Jr. ------------------------------------ Name: Richard E. Mayberry, Jr. ---------------------------------- Title: Managing Director --------------------------------- S-4 SCHEDULE 1 SELLERS
Shares of Seller Name and Address Common Stock Warrants Purchase Price ----------------------- ------------ --------- -------------- Mackay Shields LLC 9,886,045 9,812,706 $35,359,624.74 9 West 57th Street, 33rd Floor New York, NY 10019 Attention: Lucille Protas with a copy to: Weil Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 Attention: Michael Walsh, Esq. Citicorp Mezzanine III, L.P. -- 7,848,141 $14,048,172.39 Citicorp Capital Investors, Ltd. 3,436,169 $ 6,185,104.20 CVC Capital Funding, LP 606,383 $ 1,091,489.40 399 Park Avenue New York, NY 10043 with a copy to: Dechert LLP 30 Rockefeller Plaza New York, New York 10112 Attention: Ronald R. Jewell, Esq.
1-1
Shares of Seller Name and Address Common Stock Warrants Purchase Price ----------------------- ------------ --------- -------------- TCW Shared Opportunity Fund II, L.P. 367,199 363,473 $ 1,311,574.87 Shared Opportunity IIB, L.L.C. 171,809 170,136 $ 613,799.64 TCW Shared Opportunity Fund IV, L.P. 1,621,738 1,649,221 $ 5,871,233.99 TCW Shared Opportunity Fund IVB, L.P. 325,426 330,768 $ 1,177,841.52 AIMCO CDO, Series 2000-A -- 199,925 357,865.75 TCW High Income Partners, Ltd. 269,504 266,662 $ 962,432.18 TCW High Income Partners II, Ltd. 134,752 133,474 $ 481,472.06 c/o Trust Company of the West 11100 Santa Monica Blvd., Suite 2000 Los Angeles, CA 90025 Attention Shawn Bookin with a copy to Milbank, Tweed, Hadley & McCloy LLP 601 South Figueroa Street, 30th Floor Los Angeles, CA 90017 Attention: Deborah Ruosch, Esq. Metropolitan Life Insurance Company -- 217,547 $ 389,409.13
BUYER NOTICE ADDRESS Tontine Capital Partners, L.P. 55 Railroad Avenue, 3rd Floor Greenwich, CT 06830 Attention: Jeffrey L. Gendell with a copy to: Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLP 333 W. Wacker Dr., Suite 2700 Chicago, IL 60606 Attention: Sarah M. Bernstein, Esq. 1-2 EX-99.2 8 c05620exv99w2.txt STOCK PURCHASE AGREEMENT EXHIBIT 99.2 STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made this 19th day of May, 2006, by and between TONTINE CAPITAL PARTNERS, L.P., a Delaware limited partnership (the "BUYER"), and those individuals listed on the signature pages hereto (each individually, a "SELLER" and collectively, the "SELLERS"). RECITALS A. The Buyer has agreed, subject to certain conditions, to acquire certain shares and warrants to acquire shares of ACP Holding Company, a Delaware corporation with its main office located in Neenah, Wisconsin (the "COMPANY"), pursuant to a Securities Purchase Agreement between Buyer, MacKay Shields, LLC, Citicorp Capital Investors, Ltd., CVC Capital Funding LP, Citicorp Mezzanine III, L.P., Trust Company of the West and Metropolitan Life Insurance Company, dated May 19 2006 (the "SECURITIES PURCHASE AGREEMENT"). B. Each Seller is an officer or employee of the Company. Each Seller desires to sell to the Buyer and the Buyer desires to purchase from each Seller certain shares (the "SHARES") of the common stock of the Company, all on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises, covenants and agreements hereinafter set forth, the parties hereby agree as follows: AGREEMENTS SECTION 1. INITIAL SALE AND PURCHASE OF SHARES. On the terms and subject to the conditions hereinafter set forth, each Seller agrees to sell, transfer and assign the Shares set forth next to such Seller's name on Schedule 1 attached hereto and designated as "Initial Shares" (the "INITIAL SHARES), free and clear of all security interests, liens, claims, encumbrances, pledges, options, charges and restrictions (on transferability or otherwise), except for any restrictions on transfer arising pursuant to the Securities Act of 1933, as amended (the "SECURITIES ACT") or pursuant to that certain Stockholders Agreement, dated as of October 8, 2003 (the "STOCKHOLDERS AGREEMENT") among the Company, the Sellers and the additional stockholders party thereto, to the Buyer and the Buyer agrees to purchase such Shares from each of the Sellers (the "INITIAL PURCHASE"). The purchase price for the Initial Shares shall be an amount in cash equal to $1.80 per Initial Share. The total purchase price payable to each Seller in connection with the Initial Purchase is set forth next to each Seller's name on Schedule 1 hereto as the Initial Purchase Price and shall be referred to as the "INITIAL PURCHASE PRICE." SECTION 2. INITIAL CLOSING. (A) Subject to the terms of this Agreement, the closing of the Initial Purchase (the "INITIAL CLOSING") shall occur on or before the date that is five (5) days after the date that the last of the conditions set forth in SECTIONS 7 and 8 have been satisfied, or at such other place, date and time as is mutually agreed to by the Buyer and the Sellers (the "INITIAL CLOSING DATE"). (B) At the Initial Closing: (i) each Seller shall deliver the certificates representing the Initial Shares, together with duly executed Assignments Separate from Certificate, to American Stock Transfer and Trust Company, the Company's transfer agent (the "TRANSFER AGENT"), together with such other documents requested by the Transfer Agent (the "TRANSFER INSTRUCTIONS") as may be necessary for the transfer of record ownership of the Initial Shares to the Buyer on the stock records of the Company; (ii) upon the Buyer's receipt of confirmation reasonably satisfactory to the Buyer from the Transfer Agent that the Transfer Agent is prepared to transfer record ownership of the Initial Shares to the Buyer in accordance with clause (i) of this paragraph, the Buyer shall deliver the Initial Purchase Price in immediately available funds to each of the Sellers in the respective amounts shown on Schedule 1 hereto by wire transfer to an account designated by such Seller to the Buyer in writing at least two business days prior to the Initial Closing Date; and (iii) upon the Buyer's delivery of the Initial Purchase Price and in accordance with the Transfer Instructions, the Transfer Agent shall take such action as may be reasonably necessary to transfer record ownership of the Initial Shares to the Buyer on the stock transfer records of the Company and shall cause to be delivered to the Buyer certificates representing the Initial Shares. SECTION 3. SELLER PUT RIGHT. The Buyer hereby grants to each Seller the right (the "PUT RIGHT") to sell, transfer and assign to the Buyer the Shares set forth next to such Seller's name on Schedule 1 attached hereto and designated as "Put Shares" (the "PUT SHARES"), subject to adjustment from time to time in accordance with SECTION 11, free and clear of all security interests, liens, claims, encumbrances, pledges, options, charges and restrictions (on transferability or otherwise), except for any restrictions on transfer arising pursuant to the Securities Act and the Stockholders Agreement. Upon due and proper exercise by a Seller (each such Seller a "PUT SELLER") of his or her Put Right in accordance with SECTION 4 hereof, the Buyer hereby agrees to purchase such Put Shares from such Put Seller (the "PUT PURCHASE") on the terms and subject to the conditions hereinafter set forth. The purchase price for the Put Shares shall be an amount in cash equal to $1.80 per Put Share, subject to adjustment from time to time, as described in SECTION 11. The total purchase price payable to each Put Seller in connection with the Put Purchase shall be referred to as the "PUT PURCHASE PRICE." SECTION 4. EXERCISE OF PUT RIGHTS, SECOND CLOSING. (A) Each Put Seller may exercise such Put Seller's Put Right by written notice, substantially in the form attached hereto as Exhibit A (the "EXERCISE NOTICE"), delivered to the Buyer no more than ninety (90) days and at least thirty (30) days prior to the one (1) year anniversary of the Initial Closing Date. The Put Right may be exercised with respect to some or all of the Put Shares. (B) Following delivery of a properly executed Exercise Notice from a Put Seller, and subject to the terms of this Agreement, the closing of the Put Purchase (the "SECOND CLOSING") shall occur on the one (1) year anniversary of the Initial Closing Date or at such other place, date and time as is mutually agreed to by the Buyer and the Put Sellers (the "SECOND CLOSING DATE"); provided, however, that if the Buyer is required to make an HSR Notification (as hereafter defined) in connection with the Put Purchase, the Second Closing shall 2 occur on a date agreed to by the Buyer and the Put Sellers but not later than five (5) days following the satisfaction of the conditions set forth in SECTION 4(C). (C) The Put Purchase shall be subject to the satisfaction of the following conditions: (i) the truth and accuracy in all material respects of the representations and warranties of each Put Seller set forth in SECTION 5, as of the dates and for the periods to which they relate, and at the Second Closing as though made on the Second Closing Date, and the delivery by each Put Seller of a certificate to the Buyer, dated as of the Second Closing Date, certifying the same, (ii) the truth and accuracy in all material respects of the representations and warranties of the Buyer set forth in SECTION 6 as of the dates and for the periods to which they relate, and at the Second Closing as though made on the Second Closing Date, and the delivery by the Buyer of a certificate to each Put Seller, dated as of the Second Closing Date, certifying the same and (iii) if applicable, the waiting period under the HSR Act (as hereafter defined) having expired or early termination having been granted. (D) At the Second Closing: (i) each Put Seller shall deliver the certificates representing the Put Shares, together with duly executed Assignments Separate from Certificate, to the Transfer Agent, together with the Transfer Instructions as may be necessary for the transfer of record ownership of the Put Shares to the Buyer on the stock records of the Company; (ii) upon the Buyer's receipt of confirmation reasonably satisfactory to the Buyer from the Transfer Agent that the Transfer Agent is prepared to transfer record ownership of the Put Shares to the Buyer in accordance with clause (i) of this paragraph, the Buyer shall deliver the Put Purchase Price in immediately available funds to each of the Put Sellers by wire transfer to an account designated by such Put Seller to the Buyer in writing at least two business days prior to the Second Closing Date; and (iii) upon the Buyer's delivery of the Put Purchase Price and in accordance with the Transfer Instructions, the Transfer Agent shall take such action as may be reasonably necessary to transfer record ownership of the Put Shares to the Buyer on the stock transfer records of the Company and shall cause to be delivered to the Buyer certificates representing the Put Shares. (E) If required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), and the rules and regulations promulgated thereunder, in connection with the Put Purchase the Buyer shall file or cause to be filed with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice, a notification (the "HSR NOTIFICATION") under the HSR Act. SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each Seller hereby, severally and not jointly, represents and warrants to the Buyer as follows: (A) OWNERSHIP OF SHARES. Such Seller is the beneficial owner of the Shares (including the Initial Shares and the Put Shares) identified next to such Seller's name on Schedule 1 hereto, the total number of Shares identified next to the Seller's name on Schedule 1 hereto constitutes all of the Shares beneficially owned by such Seller and the Initial Shares and Put Shares are free and clear of any security interest, claim, lien, pledge, option, encumbrance or restriction (on transferability or otherwise) whatsoever, except for any restrictions on transfer arising pursuant to the Securities Act or pursuant to the Stockholders Agreement, and the 3 delivery to the Buyer of such Shares in the manner set forth in this Agreement will convey to the Buyer good and marketable title to such Shares, free and clear of any security interest, claim, lien, pledge option, encumbrance or restriction (on transferability or otherwise) whatsoever, except for any restrictions on transfer arising pursuant to the Securities Act or pursuant to the Stockholders Agreement. (B) LEGAL CAPACITY. Such Seller has the legal capacity to enter into this Agreement and carry out his obligations hereunder, including his obligation to sell to the Buyer the Initial Shares and the Put Shares, if applicable, set forth next to such Seller's name on Schedule 1 hereto. (C) AUTHORIZATION AND ENFORCEABILITY. This Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by, and duly and validly executed and delivered on behalf of such Seller, and no further approval or authorization is required. This Agreement (assuming the due authorization, execution and delivery by the other parties hereto) constitutes the valid and binding agreement of such Seller, enforceable in accordance with its terms, except as such enforceability may be limited by: (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally; (ii) equitable limitations on the availability of specific remedies; and (iii) principles of equity. (D) BROKERS AND FINDERS. Such Seller has not, and no person acting on behalf of such Seller has, employed any broker, agent or finder or incurred any liability for any brokerage fees, agents' commissions or finders' fees in connection with the transactions contemplated herein. (E) NO CONFLICTS. The execution, delivery and performance of this Agreement, as well as the consummation of the transactions contemplated hereby, will not (i) assuming the truth and accuracy of the Buyer's representations in SECTION 6(D) below, require such Seller to obtain the consent or approval of, or make any filing with, any person or public authority; (ii) conflict with or constitute or result in a breach or violation of, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on such Seller's Shares pursuant to any terms and provisions of any agreement or instrument to which such Seller is a party or by which such Seller's Shares are bound; or (iii) violate any law, regulation, judgment or order applicable to such Seller. (F) NO LITIGATION. There is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority pending or threatened against such Seller that are reasonably likely to prohibit or restrain the ability of such Seller to consummate the transactions contemplated by this Agreement. SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer hereby represents and warrants to the Sellers as follows: 4 (A) ORGANIZATION. The Buyer is a Delaware limited partnership, duly organized, validly existing and in good standing under the laws of the state of Delaware, with the requisite limited partnership power and authority to execute and deliver this Agreement and carry out its obligations hereunder, including its obligation to purchase the Shares (including the Initial Shares and, if applicable, the Put Shares) from the Sellers and pay the Initial Purchase Price and, if applicable, the Put Purchase Price to the Sellers. (B) AUTHORIZATION AND ENFORCEABILITY. This Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by, and duly and validly executed and delivered on behalf of the Buyer, and no further approval or authorization is required. This Agreement (assuming the due authorization, execution and delivery by the other parties hereto) constitutes the valid and binding agreement of the Buyer enforceable in accordance with its terms, except as such enforceability may be limited by: (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally; (ii) equitable limitations on the availability of specific remedies; and (iii) principles of equity. (C) NO CONFLICTS. The execution, delivery and performance of this Agreement, as well as the consummation of the transactions contemplated hereby, will not (i) require the Buyer to obtain consent or approval of any person or public authority, except as provided in this Agreement; (ii) conflict with or constitute or result in a breach or violation of, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement or instrument to which the Buyer is a party; or (iii) violate any law, regulation, judgment or order applicable to the Buyer. (D) INVESTMENT REPRESENTATIONS. (i) The Buyer confirms that: (A) the Shares will be acquired by the Buyer for investment only, for its own account and not as a nominee or agent and not with a view to the sale or distribution of any part thereof in violation of applicable Federal and state securities laws; and (B) the Buyer has no current intention of selling, granting participation in or otherwise distributing the Shares in violation of applicable Federal and state securities laws. By executing this Agreement, the Buyer further represents that it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person, or to any third person, with respect to any of the Shares in violation of applicable Federal and state securities laws. (ii) The Buyer understands that the Shares have not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act or an exemption from registration is available. (iii) The Buyer represents that it is an "Accredited Investor" as that term is defined in Rule 501 of Regulation D promulgated under the Securities Act, and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its purchase of the Shares. 5 (iv) The Buyer represents that it (A) is capable of bearing the economic risk of holding the unregistered Shares for an indefinite period of time and has adequate means for providing for its current needs and contingencies, (B) can afford to suffer a complete loss of this investment, and (C) understands all risk factors related to the purchase of the Shares. (E) NO OTHER REPRESENTATIONS OR WARRANTIES. Notwithstanding anything contained in this Agreement to the contrary, Buyer acknowledges and agrees that no Seller is making any representations or warranties whatsoever, express or implied, beyond those expressly given by each Seller in SECTION 5 of this Agreement. (F) BROKERS AND FINDERS. Other than Rothschild Inc., neither the Buyer nor any person acting on behalf of the Buyer has employed any broker, agent or finder or incurred any liability for any brokerage fees, agents' commissions or finders' fees in connection with the transactions contemplated herein. The Buyer shall be solely responsible for the payment of any fees or commissions payable to Rothschild Inc. in connection with this transaction. (G) NO LITIGATION. There is no litigation or proceeding, in law or in equity, and there are no proceedings or governmental investigations before any commission or other administrative authority pending or threatened against the Buyer that are reasonably likely to prohibit or restrain the ability of the Buyer to consummate the transactions contemplated by this Agreement. SECTION 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER TO PURCHASE THE INITIAL SHARES. The obligation of the Buyer to purchase the Initial Shares from each Seller is conditioned upon: (A) the truth and accuracy in all material respects of the representations and warranties of such Seller set forth in SECTION 5 as of the dates and for the periods to which they relate, and at the Initial Closing as though made on the Initial Closing Date; (B) the closing of the transactions contemplated by the Securities Purchase Agreement; and (C) the performance on or prior to the Initial Closing Date by such Seller of all other obligations and covenants required to be performed or to be complied with by such Seller under this Agreement. SECTION 8. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLERS TO SELL THE INITIAL SHARES. The obligations of each Seller to sell the Initial Shares hereunder are conditioned upon: (A) the truth and accuracy in all material respects of the representations and warranties of the Buyer set forth in SECTION 6 as of the dates and for the periods to which they relate, and at the Initial Closing as though made on the Initial Closing Date; and (B) the performance on or prior to the Initial Closing Date by the Buyer of all other obligations and covenants required to be performed or to be complied with by each Seller under this Agreement. 6 SECTION 9. TERMINATION. This Agreement and the transactions contemplated hereby may be terminated (i) as to all parties hereto, upon the termination of the Securities Purchase Agreement as to all parties thereto and (ii) with respect to the purchase and sale of the Initial Shares and the Put Shares listed next to an individual Seller's name on Schedule 1 hereto as follows: (A) by the mutual written consent of the Buyer and such Seller; or (B) upon the written notice by either the Buyer or such Seller to the other if the Initial Closing has not occurred by that date which is 75 days from the date of this Agreement, provided that the terminating party is not in breach in any material respect of any of its obligations hereunder; and provided further that if the termination date set forth in Section 9(a) of the Securities Purchase Agreement is extended thereunder, the termination period under this SECTION 9 shall be similarly extended. SECTION 10. SURVIVAL OF REPRESENTATIONS. All representations and warranties made in Sections 5(a), (b) and (c) and Sections 6(a), (b) and (d) this Agreement, shall survive the Initial Closing and the Second Closing. All other representations and warranties made in Section 5 and Section 6 shall survive the Initial Closing and the Second Closing for a period of 12 months. Those covenants and agreements contained herein which by their terms apply in whole or in part after the Second Closing shall survive the Second Closing. The representations and warranties hereunder shall not be affected or diminished by any investigation at any time by or on behalf of the party for whose benefit such representations and warranties were made SECTION 11. ADJUSTMENT OF THE PUT PURCHASE PRICE. In the event of a corporate transaction involving the Shares (including any stock dividend, stock split, extraordinary cash dividend, reorganization, split-up or spin-off) the number of Put Shares attributable to each Put Seller and the Put Purchase Price shall automatically be adjusted to proportionately and uniformly reflect such transaction. SECTION 12. CONFIDENTIALITY. The parties acknowledge that the Company will be required to make appropriate disclosures and filings with respect to this Agreement and the transactions contemplated hereunder to satisfy the Company's obligations under federal securities laws. Until such time as the Company makes such disclosures, however, neither the Buyer nor any Seller shall disclose to any person or entity, publicly or privately, the terms or existence of this Agreement or the negotiations or the transactions contemplated hereunder, except to their professional advisors, accountants and lawyers, such parties as may be necessary to facilitate the transfer of such Seller's Shares, any other Seller and the Company and as may be required by law and applicable regulation. SECTION 13. FURTHER ASSURANCES. At any time, and from time to time, the parties agree to prepare, execute and deliver all such further documents, instruments and agreements that may be reasonably requested by the Buyer or any Seller in order to effectuate and carry out any provision of this Agreement and the transactions provided for herein. SECTION 14. NOTICES. All notices, requests, demands and other communications which are required or permitted hereunder shall be in writing and shall be deemed to have been duly given: (a) when delivered personally; (b) on the following business day when sent by overnight courier; (c) on dispatch when sent by telecopy, so long as a copy of such communication is immediately thereafter mailed as provided in this SECTION 14; and (d) when 7 mailed by registered or certified mail, postage prepaid, return receipt requested, to the Buyer at the address set forth on the signature page hereto and the Sellers at their respective addresses set forth on Schedule 1 hereto. SECTION 15. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without reference to principles of conflicts of law. SECTION 16. ENTIRE AGREEMENT; AMENDMENT. This Agreement supersedes any and all oral or written agreements heretofore made relating to the subject matter hereof and constitutes the entire agreement of the parties relating to the subject matter hereof. This Agreement may be amended only by a writing executed by the Buyer and by each Seller then a party hereto. SECTION 17. NO IMPLIED RIGHTS OR REMEDIES. Except as otherwise expressly provided herein, nothing herein expressed or implied is intended or shall be construed to confer upon or to give any person, other than the Buyer and the Seller, any rights or remedies under or by reason of this Agreement. SECTION 18. NO WAIVER, ETC. No failure on the part of any of the parties hereto to exercise, no delay in exercising and no course of dealing with respect to, any right or remedy hereunder will operate as a waiver thereof. No single or partial exercise of any right or remedy hereunder will preclude any other further exercise thereof or the exercise of any other right or remedy. SECTION 19. HEADINGS. The headings in this Agreement are inserted for convenience of reference only and shall not be a part of or control or affect the meaning of this Agreement. SECTION 20. SUCCESSORS AND ASSIGNS. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns, heirs and legal representatives. SECTION 21. COUNTERPARTS; CONSTRUCTION. This Agreement and any amendments hereto may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed by facsimile, and such facsimile signature shall be deemed an original signature. Whenever used in this Agreement, the singular shall include the plural and vice versa (where applicable), the use of the masculine, feminine or neuter gender shall include the other genders (unless the context otherwise requires), the words "hereof," "herein," "hereto," "hereby," "hereunder," and other words of similar import refer to this Agreement as a whole (including all schedules and exhibits), the words "include," "includes" and "including" shall mean "include, without limitation," "includes, without limitation" and "including, without limitation," respectively. Each party has been represented by its own counsel in connection with the negotiation and preparation of this Agreement and, consequently, each party hereby waives any rule of law to the effect that any provision of this Agreement shall be interpreted or construed against the party whose counsel drafted that provision. 8 SECTION 22. EXPENSES. Irrespective of whether the Initial Closing or the Second Closing is effected, the Buyer and each Seller shall pay the respective costs and expenses that they incur with respect to the negotiation, execution, delivery and performance of the Agreement, including all fees and expenses of agents, representatives, counsel, brokers and accountants. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. BUYER: TONTINE CAPITAL PARTNERS, L.P. By: Tontine Capital Management, L.L.C., its general partner By: /s/ JEFFREY L. GENDELL --------------------------------- Name: Jeffrey L. Gendell Title: Managing Member Address: 55 Railroad Avenue, 3rd Floor Greenwich, CT 06830 S-1 SELLERS: /s/ JOHN ANDREWS /s/ GARY LACHEY - ------------------------------------- ---------------------------------------- John Andrews Gary LaChey /s/ WILLIAM BARRETT /s/ WILLIAM MARTIN - ------------------------------------- ---------------------------------------- William Barrett William Martin /s/ JOSEPH DERITA /s/ STEVEN SHAFFER - ------------------------------------- ---------------------------------------- Joseph DeRita Steven Shaffer /s/ FRANK HEADINGTON /s/ JOSEPH VARKOLY - ------------------------------------- ---------------------------------------- Frank Headington Joseph Varkoly /s/ TIMOTHY KOLLER - ------------------------------------- Timothy Koller S-2 EXHIBIT A FORM OF EXERCISE NOTICE [DATE] _____________ Tontine Capital Partners, L.P. 55 Railroad Avenue, 3rd Floor Greenwich, Connecticut 06830 Re: Put Exercise Notice Ladies and Gentlemen: Reference is made to that certain Stock Purchase Agreement, dated May ___, 2006 (the "AGREEMENT"), among Tontine Capital Partners, L.P. (the "BUYER"), the undersigned (the "SELLER") and the additional parties thereto. Capitalized terms used herein and not otherwise defined have the meanings given to them in the Agreement. Pursuant to Section 3 of the Agreement, the Buyer has granted the Seller the Put Right with respect to the Put Shares set forth next to the Seller's name on Schedule 1 to the Agreement. Pursuant to Section 4 of the Agreement, the Seller hereby exercises the Put Right with respect to ____________ Put Shares. Sincerely, ---------------------------------------- Name A-1 EX-99.3 9 c05620exv99w3.txt TRANSFER NOTICE EXHIBIT 99.3 MACKAY SHIELDS LLC CITICORP MEZZANINE III, L.P. 9 WEST 57TH STREET, 33RD FLOOR CITICORP CAPITAL INVESTORS, LTD. NEW YORK, NY 10019 CVC CAPITAL FUNDING, LP 399 PARK AVENUE NEW YORK, NY 10043 May 19, 2006 ACP Holding Company 2121 Brooks Avenue Neenah, WI 54956 Attention: William M. Barrett RE: TRANSFER NOTICE AND FIRST OPTION Dear Bill: Reference is made to the Stockholders Agreement, dated as of October 8, 2003 (the "Stockholders Agreement"), among ACP Holding Company ("ACP"), the Management Stockholders (as defined therein), MacKay Shields LLC ("MacKay"), Citicorp Mezzanine III, L.P. ("CM-III"), and Trust Company of the West ("TCW"). Terms used in this letter and not otherwise defined herein shall have the meanings ascribed to such terms in the Stockholders Agreement. Certain accounts for which MacKay is the investment advisor beneficially own, in the aggregate, 9,886,045 shares of Common Stock and 9,812,706 New Warrants (the "MacKay/ACP Securities"). Citicorp Capital Investors, Ltd. ("CCI") and CVC Capital Funding, LP (collectively with CM-III and CCI, the "Citicorp Stockholders") beneficially own 3,436,169 and 606,383 shares of Common Stock, respectively, and CM-III beneficially owns 7,848,141 New Warrants (collectively such Common Stock and New Warrants, the "Citicorp/ACP Securities"). Each of MacKay and the Citicorp Stockholders desires to Transfer all of the MacKay/ACP Securities and Citicorp/ACP Securities, as applicable, to Tontine Capital Partners, L.P. ("Tontine"). The purpose of this letter is for each of MacKay and the Citicorp Stockholders to (i) provide ACP with the Transfer Notice in accordance with Section 3.2(a) of the Stockholders Agreement and (ii) make a First Option in accordance with Section 3.2(b) of the Stockholders Agreement. Tontine has offered to purchase, among other things, all of the MacKay/ACP Securities and Citicorp/ACP Securities for an amount in cash equal to $1.80 per share of Common Stock and $1.79 per New Warrant, as more fully described in the Securities Purchase Agreement, dated May 19, 2006, attached hereto as Exhibit A (the "SPA"), the terms of which are incorporated by reference herein. Pursuant to Section 3.2(b) of the Stockholders Agreement (i) MacKay hereby offers a First Option to ACP to purchase all of the MacKay/ACP Securities and (ii) the Citicorp Stockholders hereby offer a First Option to ACP to purchase all of the Citicorp/ACP Securities, in each case for the same consideration offered to be paid to such party by Tontine. Pursuant to Section 3.2(b) of the Stockholders Agreement, the decision of whether or not ACP will accept a First Option shall be made by the Board of Directors, and ACP is required to give each of MacKay and the Citicorp Stockholders written notice (the "ACP Response") of such determination on or prior to the tenth Business Day after receipt of this letter. However, if ACP does not desire to accept either First Option described above, MacKay and the Citicorp Stockholders would appreciate receipt of the applicable ACP Response as soon as possible after such determination is made. If ACP fails to respond to a First Option within the Election Period or declines to exercise such First Option, MacKay Shields and/or the Citicorp Stockholders, as applicable, intend to provide a Transfer Notice and Second Option to all 5% Stockholders who are not party to the SPA, if any. Any such Transfer Notice and Second Option shall also include a copy of the SPA and a Participation Offer, which will be joined by TCW, in accordance with Section 3.4 of the Stockholders Agreement However, the Stockholders Agreement does not specifically state whether Tag-Along Participating Stockholders are required to comply with Section 3.2 of the Stockholders Agreement and make a First Option to ACP prior to being permitted to participate in a Tag-Along Transaction. Each of MacKay and the Citicorp Stockholders believes that this was neither the intent of the parties to the Stockholders Agreement nor would this interpretation be appropriate or rational since ACP would have to reject a First Option before any such Tag-Along Transaction (which would be for the same consideration and on the same terms and conditions as such First Option) could become a possibility. However, to avoid any misunderstandings, MacKay and the Citicorp Stockholders request that ACP acknowledge in the ACP Response that it has no right to receive from a Tag-Along Participating Stockholder, and no Tag-Along Participating Stockholder is obligated to provide ACP with, a First Option prior to consummating any Tag-Along Transaction offered by MacKay or the Citicorp Stockholders in connection with the transactions described herein. MacKay and the Citicorp Stockholders also request that ACP, in the ACP Response, confirm if it is aware of any 5% Stockholders other than MacKay, the Citicorp Stockholders and TCW. Please contact us if you have any questions regarding this letter. Thank you for your prompt attention to this matter. Sincerely, MACKAY SHIELDS LLC, as investment advisor for certain accounts By: /s/ Lucille Protas -------------------------------------- Name: Lucille Protas Title: Chief Administrative Officer CITICORP MEZZANINE III, L.P. By: /s/ Richard E. Mayberry, Jr. -------------------------------------- Name: Richard E. Mayberry, Jr. ------------------------------------ Title: Managing Director ----------------------------------- Citicorp Capital Investors, Ltd. 399 Park/14th FL/2nd (212) 559-2651 2 CITICORP CAPITAL INVESTORS, LTD. By: /s/ RICHARD E. MAYBERRY, JR. -------------------------------------- Name: RICHARD E. MAYBERRY, JR. Title: Managing Director Citicorp Capital Investors, Ltd. 399 Park/14th FL/Zn. 4 (212) 559-2651 CVC CAPITAL FUNDING LP By: /s/ RICHARD E. MAYBERRY, JR. -------------------------------------- Name: RICHARD E. MAYBERRY, JR. Title: Managing Director Citicorp Capital Investors, Ltd. 399 Park/14th FL/Zn. 4 (212) 559-2651 cc: Geoffrey W. Levin (Kirkland & Ellis LLP) Bruce C. Davidson (Quarles & Brady LLP) Ronald R. Jewell (Dechert LLP) 3 EX-99.4 10 c05620exv99w4.txt RESPONSE LETTER EXHIBIT 99.4 ACP HOLDING COMPANY 2121 BROOKS AVENUE NEENAH, WISCONSIN 54956 May 22, 2006 MacKay Shields LLC Citicorp Mezzanine III, L.P. 9 West 57th Street, 33rd Floor Citicorp Capital Investors, Ltd. New York, NY 10019 CVC Capital Funding, LP 399 Park Avenue Attention: Lucille Protas New York, NY 10043 Chief Administrative Officer Attention: Richard E. Mayberry, Jr. Managing Director Re: Transfer Notice and First Option Ladies and Gentlemen: We have received your letter dated May 19, 2006, and the Securities Purchase Agreement attached thereto as Exhibit A, constituting the Transfer Notice and First Option with respect to the proposed Transfers described therein as required by the Stockholders Agreement dated as of October 8, 2003 (the "Stockholders Agreement"). Capitalized terms used in this letter and not otherwise defined herein have the meanings ascribed to those terms in the Stockholders Agreement. The Board of Directors of ACP Holding Company ("ACP") has determined not to accept either First Option. As you requested, notwithstanding anything to the contrary in the Stockholders Agreement, ACP hereby waives any right to receive from a Tag-Along Participating Stockholder a First Option prior to consummating any Tag-Along Transaction offered by MacKay or the Citicorp Stockholders in connection with the transactions described in the Transfer Notice and First Option. As you requested, ACP agrees to extend the Observation Rights described in Section 3(g) of the Securities Purchase Agreement to any Continuing Major Seller as defined therein. In response to your request regarding 5% Stockholders, attached is a list, as of May 15, 2006, of the record holders of ACP common stock, along with securities position reports for the common stock and the warrants. The information known to ACP with respect to known 5% beneficial owners is included in Item 12 of Neenah Foundry Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2005. ACP has previously provided information known to it regarding the ownership of ACP common stock and warrants, and will be happy to reasonably cooperate with any inquiries you may wish to pursue. Sincerely, ACP HOLDING COMPANY /s/ William M. Barrett ---------------------------------------- William M. Barrett President and Chief Executive Officer Enclosures cc: Geoffrey W. Levin (Kirkland & Ellis LLP) Ronald R. Jewell (Dechert LLP) Michael Walsh (Weil, Gotshal & Manges LLP) -----END PRIVACY-ENHANCED MESSAGE-----