ALLIED SYSTEMS HOLDINGS, INC.

-----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, QcVx6XBuoLYNC6SrqI2cbyDnMIXGoD74DRfUN+AJm1jO/FQjGW/8UaKDOLPOg3CA 8CN47e3dfxF9vxAPo4J/8Q== 0000950144-07-005266.txt : 20070530 0000950144-07-005266.hdr.sgml : 20070530 20070529185853 ACCESSION NUMBER: 0000950144-07-005266 CONFORMED SUBMISSION TYPE: 8-A12G PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20070530 DATE AS OF CHANGE: 20070529 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALLIED HOLDINGS INC CENTRAL INDEX KEY: 0000909950 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 580360550 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12G SEC ACT: 1934 Act SEC FILE NUMBER: 000-22276 FILM NUMBER: 07885063 BUSINESS ADDRESS: STREET 1: 160 CLAIRMONT AVE STREET 2: STE 200 CITY: DECATUR STATE: GA ZIP: 30030 BUSINESS PHONE: 4043701100 MAIL ADDRESS: STREET 1: 160 CLAIREMONT AVENUE SUITE 200 CITY: DECATUR STATE: GA ZIP: 30030 8-A12G 1 g07653e8va12g.htm ALLIED SYSTEMS HOLDINGS, INC. ALLIED SYSTEMS HOLDINGS, INC.

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-A

FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934

Allied Systems Holdings, Inc.

(Exact name of registrant as specified in its charter)


Delaware (State or Other Jurisdiction of Incorporation or Organization)		58-0360550 (I.R.S. Employer Identification Number)


160 Clairemont Avenue, Suite 510 Decatur, Georgia (Address of principal executive offices)		30030 (Zip Code)

Securities to be registered pursuant to Section 12(b) of the Act:


Title of Each Class to be so Registered		Name of Each Exchange on Which Each Class is to be Registered


None.		None.


If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), please check the following box o		If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), please check the following box þ

Securities Act registration statement file number to which this form relates: N/A

Securities to be registered pursuant to Section 12(g) of the Act:

Common Stock, par value $0.01 per share
(Title of Class)

TABLE OF CONTENTS


	Item 1. Description of Company’s Securities to be Registered.
	Item 2. Exhibits.
EX-1.1 AMENDED CERTIFICATE OF INCORPORATION
EX-1.2 BYLAWS OF ALLIED SYSTEMS HOLDINGS, INC.
EX-4.1 FORM OF STOCKHOLDERS' AGREEMENT
EX-4.2 FORM OF REGISTRATION RIGHTS AGREEMENT

Item 1. Description of Company’s Securities to be Registered.

On July 31, 2005 Allied Holdings, Inc., a Georgia corporation (“Allied Georgia”), now known as Allied Systems Holdings, Inc., a Delaware corporation (the “Company”), and certain of its subsidiaries (collectively with Allied Georgia, the “Debtors”) filed voluntary petitions for relief in the United States Bankruptcy Court of the Northern District of Georgia (the “Bankruptcy Court”) under Chapter 11 of the United States Bankruptcy Code, Case No. 05-12515. On May 18, the Bankruptcy Court entered an order confirming the Debtors’ Modified Second Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code, dated April 6, 2007 (the “Plan of Reorganization”). On May 29, 2007, the effective date of the Plan of Reorganization (the “Effective Date”), the Debtors emerged from the proceedings under Chapter 11 of the Bankruptcy Code.

On the Effective Date, among other things, pursuant to the Plan of Reorganization, all equity interests in Allied Georgia were cancelled. Also on the Effective Date, pursuant to the Plan of Reorganization, the Company’s certificate of merger was filed with the Delaware Secretary of State, making effective the merger of Allied Georgia into its wholly owned subsidiary, the Company, with the Company being the surviving corporation. As of the Effective Date, the authorized capital stock of the Company is one hundred million (100,000,000) shares of common stock, par value $0.01 per share (“Common Stock”), and ten million (10,000,000) shares of preferred stock, par value $0.01 per share (“Preferred Stock”). This Registration Statement on Form 8-A pertains to the Common Stock.

Common Stock

The following statements do not purport to be complete and are qualified in their entirety by reference to the terms of the Amended Certificate of Incorporation of the Company (the “Certificate of Incorporation”) and the Bylaws of the Company (the “Bylaws”), copies of which are filed hereto as Exhibits 1.1 and 1.2, respectively.

Voting Rights/Dividends. Subject to the express terms of any Preferred Stock which may be issued, the holders of shares of Common Stock will be entitled to one vote for each such share upon all questions presented to the stockholders and shall not have cumulative voting rights. Holders of Common Stock have no preemptive rights and are entitled to receive proportionately any dividends as may be declared by the board of directors of the Company (the “Board”), subject to any preferential dividend rights of outstanding preferred stock.

Board Composition. As of the Effective Date, the Board was selected as provided for pursuant to the Plan of Reorganization and consists of five directors that will serve from the Effective Date until the Annual Meeting of Stockholders of the Company in 2008 and until his or her successor has been duly elected and qualified or until his or her earlier death, resignation, retirement, disqualification or removal from office. Thereafter, directors will serve one year terms, each director will be elected in accordance with the terms of the Certificate of Incorporation and each such director so elected shall hold office until such director’s successor is duly elected and qualified or until such director’s earlier death, resignation or removal.

Transfer Restrictions. The Certificate of Incorporation provides that all transactions in Common Stock that would lead to the Company having more than 290 stockholders of record, or that the Company reasonably determines would lead to the Company having more than 290 stockholders of record, will be void and not recognized or registered by the Company. Such restrictions on transferability will not prohibit transfers by the Company or any holder of Common Stock to another person or entity that is already a holder of record of Common Stock, transfers of Common Stock to the Company, transfers of all Common Stock owned by the proposed transferor to a single person or entity who is treated as a single

record holder under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or transfers that do not result in the Company having more than 290 holders of record. Additionally, such restrictions on transferability will no longer be in effect on and after the earlier of (i) such time as the Company determines that it has more than 500 holders of record (as such concept is understood for purposes of Section 12(g) of the Exchange Act) of Common Stock, (ii) if the Company has not filed a Form 15 deregistering the Common Stock under the Exchange Act, November 30, 2007, (iii) the listing of the Common Stock on the New York Stock Exchange, NASDAQ or the American Stock Exchange (“AMEX”), (iv) the consummation of a sale of capital stock of the Company in an underwritten public offering registered under the Securities Act of 1933, as amended (the “Securities Act”), with gross proceeds to the Company or the selling stockholders of not less than $40,000,000 or (v) on the fifth business day following the Company’s receipt of written notice from Yucaipa American Alliance Fund I, LP (“YAAF”), Yucaipa American Alliance (Parallel) Fund I, LP (“YAAF Parallel” and, together with YAAF, the “Yucaipa Stockholders”) or their affiliates, that they have determined, in their sole and absolute discretion, that the transfer restrictions provided in the Amended Certificate of Incorporation will be void and no longer given effect.

Restrictions on Certain Transactions. The Certificate of Incorporation provides that the vote or consent of at least (i) a percentage of the outstanding Common Stock that is held or owned by the Yucaipa Stockholders and certain of their affiliates plus 7% or (ii) so long as there is no preferred stock of the Company with materially disproportionate voting rights to the Common Stock, a percentage of the outstanding voting stock that is held or owned by the Yucaipa Stockholders and certain of their affiliates plus 7% is required in order to effect the following:

• a merger or consolidation of the Company or a subsidiary of the Company (i) the assets of which exceed 20% of the total assets of the Company and its subsidiaries taken as a whole on a consolidated basis at the end of the most recently completed fiscal year or (ii) that generated revenues which exceeded 20% of the total revenues of the Company and its subsidiaries on a consolidated basis at the end of the most recently completed fiscal year (subsidiaries satisfying either clause (i) or (ii) above, “Material Subsidiaries”) with or into any of the Yucaipa Stockholders and certain of their affiliates;

• the sale, lease, license or other transfer of all or substantially all of the properties and assets of the Company and its subsidiaries (taken as a whole on a consolidated basis as of the most recently completed fiscal year of the Company) or of a Material Subsidiary and its subsidiaries (taken as a whole on a consolidated basis as of the most recently completed fiscal year of the Company) to one or more of the Yucaipa Stockholders and certain of their affiliates, whether in one transaction or in a series of transactions;

• the sale by the Company or any subsidiary of the Company of capital stock of the Company or such subsidiary, or of securities convertible by their terms into such capital stock, to any of the Yucaipa Stockholders and certain of their affiliates where the aggregate consideration paid by them for such capital stock or convertible securities in any consecutive 180-day period exceeds $25,000,000 or, prior to May 29, 2009, exceeds $100,000,000 in the aggregate; and

• any amendment to the provisions of the article of the Certificate of Incorporation containing such restrictions.

The restrictions on affiliate transactions contained in the Certificate of Incorporation expire on and after the earlier of May 29, 2009 or such date as the Yucaipa Stockholders and their affiliates own or hold in the aggregate either (i) 75% or more of the Common Stock or (ii) so long as the Yucaipa Stockholders and their affiliates do not own or hold preferred stock of the Company with materially disproportionate voting rights to the Common Stock, 75% or more of the voting stock of the Company.

Conversion Rights/Sinking Fund Provisions. The holders of the Common Stock do not have any conversion rights and there is no sinking fund provision with respect to the Common Stock.

Redemption and Preemptive Rights. The holders of Common Stock do not receive any redemption or preemptive rights to purchase or subscribe for securities of the Company.

Liquidation. Upon the liquidation, dissolution or winding up of the affairs of the Company, subject to the express terms of any Preferred Stock which may be issued, the holders of Common Stock will be entitled to receive ratably all assets of the Company legally available for distribution to the holders of Common Stock.

Stockholders Agreement and Registration Rights

Pursuant to the Plan of Reorganization, on the Effective Date the Yucaipa Stockholders, the Company and certain other beneficial holders of over 5% of the Common Stock entered into a Stockholders’ Agreement (the “Stockholders’ Agreement) and a Registration Rights Agreement (the “Registration Rights Agreement”) each of which provide certain rights and restrictions with respect to the Common Stock and other securities of the Company. The following statements do not purport to be complete and are qualified in their entirety by reference to the terms of the Stockholders’ Agreement and the Registration Rights Agreement, copies of which are filed hereto as Exhibits 4.1 and 4.2 respectively.

Board of Directors. Pursuant to the Stockholders’ Agreement, the Yucaipa Stockholders have the right to designate a number of members of the Board that is not less than the majority of the number of then-authorized members of the Board (the “Yucaipa Designees”). In addition, until the second anniversary of the Effective Date, or until otherwise terminated in accordance with the terms of the Stockholder’s Agreement, (i) the Yucaipa Stockholders have agreed to vote all of their shares of Common Stock entitled to vote so that a representative designated by the members of a committee of creditors of Allied Georgia that is reasonably satisfactory to the Yucaipa Stockholders will be elected to the Board and (ii) the other stockholders party to the Stockholders’ Agreement have agreed to vote all of their shares of Common Stock entitled to vote so that the Yucaipa Designees will be elected to the Board.

Certain Additional Required Approvals. The Stockholders’ Agreement provides that until the second anniversary of the Effective Date, the Company will not cause, or permit any subsidiary of the Company to, sell or transfer any of its or their properties or assets to, or purchase property or assets from, or enter into any contract or agreement with the Yucaipa Stockholders or certain of their affiliates (an “Affiliate Transaction”) unless either (i) the Affiliate Transaction is approved by the affirmative vote of a specified percentage of the outstanding Common Stock, (ii) the Affiliate Transaction is approved by a majority of the disinterested directors of the Board or by all of the directors then serving on the Board, (iii) the Company has received an opinion as to the fairness to the Company and/or its subsidiary(ies) of such Affiliate Transaction, from a financial point of view, issued by certain accounting, appraisal or investment banking firms or (v) the Affiliate Transaction constitutes one of a series of other permitted transactions as specified in the Stockholders’ Agreement. The requirement that one of the aforementioned additional approvals be obtained will terminate on the earlier of the second anniversary of the Effective Date or the occurrence of certain other specified events as set forth in the Stockholder’s Agreement.

Subscription Rights. Subject to certain exceptions, the Yucaipa Stockholders, their affiliates and certain other eligible stockholder parties to the Stockholders’ Agreement (each such eligible stockholder, including the Yucaipa Stockholders and their affiliates, a “Subscription Holder”) are entitled to purchase a pro rata portion of any equity securities subsequently issued by the Company for cash based on the number of shares of Common Stock owned by such Subscription Holder and the total number of shares

held by all Subscription Holders at such time. The Subscription Holders will also have the right to participate in debt financings provided to the Company by the Yucaipa Stockholders and their affiliates in which the Yucaipa Stockholders or their affiliates are issued equity securities. The abovementioned subscription rights will terminate upon the earlier of (i) the listing of the Common Stock on the New York Stock Exchange, the NASDAQ or AMEX, (ii) the consummation of a sale of equity securities of the Company in an underwritten public offering registered under the Securities Act, with gross proceeds of not less than $40,000,000, and resulting in the listing of such of the Company’s equity securities on any of the New York Stock Exchange, NASDAQ (any market thereof) or AMEX or (iii) a sale, series of sales, transfers or issuances of capital stock of the Company such that a person or group of persons (as the term group is defined under the Exchange Act), other than the Yucaipa Stockholders and certain of their affiliates, would own a majority of the capital stock of the Company, or, sale or transfer of all or substantially all of the assets of the Company and its subsidiaries (other than in the ordinary course of business) to any person or group of persons.

Registration Rights. The Company has entered into a Registration Rights Agreement with the Yucaipa Stockholders and certain other beneficial holders of over 5% of the Common Stock that, subject to certain limitations contained in the Registration Rights Agreement, grants to such holders certain rights (i) to demand the Company register such holders’ Common Stock held on the Effective Date or thereafter acquired by them with the Securities and Exchange Commission and (ii) to participate in any registrations of the Common Stock by the Company.

Item 2. Exhibits.


1.1		Amended Certificate of Incorporation, dated as of May 29, 2007.

1.2		Bylaws of Allied Systems Holdings, Inc.

4.1		Form of Stockholders’ Agreement by and among Allied Systems Holdings, Inc., Yucaipa American Alliance Fund I, LP, Yucaipa American Alliance (Parallel) Fund I and certain other parties signatory thereto.

4.2		Form of Registration Rights Agreement by and among Allied Systems Holdings, Inc., Yucaipa American Alliance Fund I, LP, Yucaipa American Alliance (Parallel) Fund I and certain other parties signatory thereto.

Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized.


	Allied Systems Holdings, Inc.
Date: May 29, 2007	By:	/s/ Thomas H. King
		Name:	Thomas H. King
		Title:	Executive Vice President and Chief Financial Officer

EX-1.1 2 g07653exv1w1.htm EX-1.1 AMENDED CERTIFICATE OF INCORPORATION EX-1.1 AMENDED CERTIFICATE OF INCORPORATION

Exhibit 1.1

AMENDED CERTIFICATE OF INCORPORATION
OF
ALLIED SYSTEMS HOLDINGS, INC.

FIRST. The name of the corporation is Allied Systems Holdings, Inc.

SECOND. The address of the corporation’s registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle, 19808. The name of its registered agent at such address is The Corporation Trust Company.

THIRD. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

FOURTH. The Corporation shall have authority to issue one class of Common Stock and one class of Preferred Stock. The Corporation may issue 100,000,000 shares of Common Stock, $0.01 par value per share (the “Common Stock”). The Corporation may issue 10,000,000 shares of Preferred Stock, $0.01 par value per share (the “Preferred Stock”).

The Preferred Stock may be issued from time to time in one or more series. The board of directors of the Corporation (the “Board of Directors”) is hereby authorized to provide by resolution for the issuance of shares of Preferred Stock in one or more series and, by filing a certificate pursuant to the applicable law of the State of Delaware (hereinafter referred to as “Preferred Stock Designation”), setting forth such resolution, to establish by resolution from time to time the number of shares to be included in each such series, and to fix by resolution the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations and restrictions thereof. The authority of the Board of Directors with respect to each series shall include, but not be limited to, determination of the following:

(a) the designation of the series, which may be by distinguishing number, letter or title;

(b) the number of shares of the series, which number the Board of Directors may thereafter (except where otherwise provided in the Preferred Stock Designation) increase or decrease (but not below the number of shares thereof then outstanding);

(c) the amounts or rates at which dividends will be payable on, and the preferences, if any, of shares of the series in respect of dividends, and whether such dividends, if any, shall be cumulative or noncumulative;

(d) dates on which dividends, if any, shall be payable;

(e) the redemption rights and price or prices, if any, for shares of the series;

(f) the terms and amount of any sinking fund, if any, provided for the purchase or redemption of shares of the series;

(g) the amounts payable on, and the preferences, if any, of shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation;

(h) whether the shares of the series shall be convertible into, or exchangeable, or redeemable for, shares of any other series or any other security of the Corporation or any other corporation, and, if so, the specification of such other series or such other security, the conversion or exchange price or prices or rate or rates, any adjustments thereof, the date or dates on which such shares shall be convertible or exchangeable and all other terms and conditions upon which such conversion or exchange may be made;

(i) the voting rights, if any, of the holders of shares of the series generally or upon specified events; and

(j) any other rights, powers and preferences of such shares as are permitted by law.

The Common Stock shall be subject to the express terms of the Preferred Stock and any series thereof. Except as may otherwise be provided in this Amended Certificate of Incorporation, in a Preferred Stock Designation or by applicable law, the holders of shares of Common Stock shall be entitled to one vote for each such share upon all questions presented to the stockholders and shall not have cumulative voting rights.

The Corporation shall be entitled to treat the person in whose name any share of its stock is registered as the owner thereof for all purposes and shall not be bound to recognize any equitable or other claim to, or interest in, such share on the part of any other person, whether or not the Corporation shall have notice thereof, except as expressly provided by applicable law.

FIFTH. Unless and except to the extent that the Bylaws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

SIXTH. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board of Directors. The Board of Directors shall have that number of directors from time to time fixed pursuant to a resolution adopted by a majority of the Board of Directors.

SEVENTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized to make, alter and repeal the Bylaws of the Corporation.

Except as otherwise provided in this Amended Certificate of Incorporation or the Bylaws of the Corporation, and in addition to any other vote required by law, the affirmative vote of the holders of not less than a majority of the total voting power of the outstanding shares of capital stock of the Corporation entitled to vote (the “Voting Stock”), voting together as a single class, shall be the only vote required in order for stockholders to alter, amend or repeal any provision of the Bylaws of the Corporation.

EIGHTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended. If the General Corporation Law of the State of Delaware is amended after the effective date of this Amended Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of the State of Delaware, as so amended.

Any amendment, modification or repeal of the foregoing paragraph shall not adversely affect any right or protection of a director of the Corporation hereunder with respect to any act or omission occurring prior to the time of such amendment, modification or repeal.

NINTH. (a) Certain Acknowledgments. In recognition and anticipation (i) that the Corporation will not be a wholly owned subsidiary of Yucaipa American Alliance Fund I, LP or Yucaipa American Alliance (Parallel) Fund I, LP (collectively, the “Yucaipa Entities”) and that any of the Yucaipa Entities or Affiliated Companies (as defined below) thereof may be controlling or significant stockholders of the Corporation, (ii) that directors, officers and/or employees of any of the Yucaipa Entities or of Affiliated Companies thereof may serve as directors and/or officers of the Corporation, (iii) that any of the Yucaipa Entities and Affiliated Companies thereof may engage (and are expected to continue to engage) in the same, similar or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, (iv) that any of the Yucaipa Entities and Affiliated Companies thereof may have an interest in the same areas of corporate opportunity as the Corporation and Affiliated Companies thereof, (v) that any of the Yucaipa Entities and Affiliated Companies thereof may engage in material business transactions with the Corporation and Affiliated Companies thereof, and that any of the Yucaipa Entities and/or the Corporation may benefit therefrom, and (vi) that, as a consequence of the foregoing, it is in the best interests of the Corporation that the respective rights and duties of the Corporation and of any of the Yucaipa Entities and Affiliated Companies thereof, and the duties of any directors or officers of the Corporation who are also directors, officers or employees of any of the Yucaipa Entities or of Affiliated Companies thereof, be determined and delineated in respect of any transactions between, or opportunities that may be suitable for both, the Corporation and Affiliated Companies thereof, on the one hand, and any of the Yucaipa Entities and Affiliated Companies thereof, on the other hand, and in recognition of the benefits to be derived by the Corporation through its continual contractual, corporate and business relations with any of the Yucaipa Entities and Affiliated Companies thereof (including possible service of officers and directors of any of the Yucaipa Entities and Affiliated Companies thereof as officers and directors of the

Corporation), the provisions of this Article NINTH shall to the fullest extent permitted by law regulate and define the conduct of certain of the business and affairs of the Corporation in relation to any of the Yucaipa Entities and Affiliated Companies thereof and the conduct of certain affairs of the Corporation as they may involve any of the Yucaipa Entities, any Affiliated Companies thereof and its officers and directors, and the power, rights, duties and liabilities of the Corporation and its officers, directors and stockholders in connection therewith. Any person purchasing or otherwise acquiring any shares of capital stock of the Corporation, or any interest therein, shall be deemed to have notice of and to have consented to the provisions of this Article NINTH.

(b) Certain Agreements and Transactions Permitted; Certain Fiduciary Duties of Certain Stockholders, Directors and Officers. The Corporation may from time to time enter into and perform, and cause or permit any Affiliated Company of the Corporation to enter into and perform, one or more agreements (or modifications or supplements to pre-existing agreements) with any of the Yucaipa Entities or Affiliated Companies thereof pursuant to which the Corporation or an Affiliated Company thereof, on the one hand, and any Yucaipa Entity or an Affiliated Company thereof, on the other hand, agree to engage in transactions of any kind or nature with each other or with Affiliated Companies thereof and/or agree to compete, or to refrain from competing or to limit or restrict their competition, with each other, including to allocate and to cause their respective directors, officers, stockholders, employees and agents (including any who are directors, officers, stockholders, employees or agents of both) to allocate opportunities between or to refer opportunities to each other. Subject to Section (d) of this Article NINTH, no such agreement, or the performance thereof by the Corporation or any of the Yucaipa Entities, or any Affiliated Company thereof, shall to the fullest extent permitted by law be considered contrary to (i) any fiduciary duty that any of the Yucaipa Entities or any Affiliated Company thereof may owe to the Corporation or any Affiliated Company thereof or to any stockholder or other owner of an equity interest in the Corporation or an Affiliated Company thereof by reason of any of the Yucaipa Entities or any Affiliated Company thereof being a controlling or significant stockholder of the Corporation or of any Affiliated Company or participating in the control of the Corporation or of any Affiliated Company thereof or (ii) any fiduciary duty of any director or officer of the Corporation or of any Affiliated Company thereof who is also a director, officer, employee or agent of any of the Yucaipa Entities or any Affiliated Company thereof to the Corporation or such Affiliated Company, or to any stockholder thereof. Subject to Section (d) of this Article NINTH, to the fullest extent permitted by law, none of the Yucaipa Entities nor any Affiliated Company thereof, as a stockholder of the Corporation or any Affiliated Company thereof, or participant in control of the Corporation or any Affiliated Company thereof, shall have or be under any fiduciary duty to refrain from entering into any agreement or participating in any transaction referred to above and no director, officer, stockholder, employee or agent of the Corporation who is also a director, officer, stockholder, employee or agent of any of the Yucaipa Entities or any Affiliated Company thereof shall have or be under any fiduciary duty to the Corporation or any Affiliated Company thereof, to refrain from acting on behalf of the Corporation or any Affiliated Company thereof or of any of the Yucaipa Entities or any Affiliated Company thereof in respect of any such agreement or transaction or performing any such agreement in accordance with its terms. The Corporation renounces any interest or expectancy of the Corporation or Affiliated Companies thereof in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to the Corporation or its directors, officers, stockholders, employees, agents or

Affiliated Companies, even if the opportunity is one that the Corporation or Affiliated Companies thereof might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so.

(c) Similar Activities or Lines of Business. Except as otherwise agreed in writing between the Corporation and any of the Yucaipa Entities, the Yucaipa Entities and any Affiliated Company thereof shall to the fullest extent permitted by law have no duty to refrain from (i) engaging in the same or similar activities or lines of business as the Corporation and any Affiliated Company thereof and (ii) doing business with any client, customer or vendor of the Corporation or any Affiliated Company thereof, and no Yucaipa Entity nor any officer, director, employee or Affiliated Company thereof (except as provided in subsection (d) below) shall to the fullest extent permitted by law be deemed to have breached its or his or her fiduciary duties, if any, to the Corporation solely by reason of any of the Yucaipa Entities or any Affiliated Company engaging in any such activity. Neither the Corporation, any Affiliated Company nor any of their respective stockholders shall have any rights in or to any of the activities described in the foregoing sentence or the income or profits derived therefrom. In the event that any Yucaipa Entity or an Affiliated Company acquires knowledge of a potential transaction or matter which may be a corporate opportunity for any of the Yucaipa Entities, an Affiliated Company thereof and the Corporation or an Affiliated Company thereof, the Yucaipa Entity and its Affiliated Company shall to the fullest extent permitted by law have no duty to communicate or offer such corporate opportunity to the Corporation or any Affiliated Company thereof and shall not to the fullest extent permitted by law be liable to the Corporation or its stockholders for breach of any fiduciary duty as a stockholder of the Corporation by reason of the fact that any of the Yucaipa Entities or any Affiliated Company thereof acquires or seeks such corporate opportunity for itself, directs such corporate opportunity to another person or entity, or otherwise does not communicate information regarding such corporate opportunity to the Corporation or any Affiliated Company thereof.

(d) Duties of Directors and Officers of the Corporation. In the event that a director or officer of the Corporation who is also a director, officer or employee of any Yucaipa Entity or an Affiliated Company acquires knowledge of a potential transaction or matter which may be a corporate opportunity for the Corporation or an Affiliated Company thereof or, any Yucaipa Entity or an Affiliated Company thereof, such director or officer shall to the fullest extent permitted by law have fully satisfied and fulfilled his or her fiduciary duty with respect to such corporate opportunity, and the Corporation to the fullest extent permitted by law waives any claim that such business opportunity constituted a corporate opportunity that should have been presented to the Corporation or any Affiliated Company thereof, if such director or officer acts in a manner consistent with the following policy: a corporate opportunity offered to any person who is an officer or director of the Corporation, and who is also an officer, director or employee of any of the Yucaipa Entities or an Affiliated Company thereof, shall belong to the Yucaipa Entities or an Affiliated Company thereof, unless such opportunity was expressly offered to such person in writing and solely in his or her capacity as a director or officer of the Corporation.

(e) Certain Definitions. For purposes of this Article NINTH and TENTH, “Affiliated Company” shall mean in respect of the Yucaipa Entities any entity which is controlled by any of the Yucaipa Entities, controls any of the Yucaipa Entities or is under common control with any of the Yucaipa Entities (other than the Corporation and any entity that

is controlled by the Corporation) and in respect of the Corporation shall mean any entity controlled by the Corporation. For the purposes of this definition, “control” means the possession of the power to direct or cause the direction of the management and policies of such entity through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, for so long as the Yucaipa Entities directly or indirectly own more than fifty percent (50%) of the capital stock of Performance Logistics Group, Inc., a Delaware corporation, such corporation shall be considered an Affiliated Company of the Yucaipa Entities for purposes of this Article NINTH and TENTH.

TENTH. (a) Affiliate Transactions. Until May 29, 2009, or such earlier date as provided in Section (c) of this Article TENTH, the vote or consent of at least a Supermajority (as defined below) of either the Common Stock or the Voting Stock of the Corporation is required in order to effect the following:

(1) a merger or consolidation of the Corporation or a Material Subsidiary (as defined below) with or into any of the Yucaipa Entities or any of their Affiliated Companies;

(2) the sale, lease, license or other transfer of all or substantially all of the properties and assets of the Corporation and its subsidiaries (taken as a whole on a consolidated basis as of the most recently completed fiscal year of the Corporation) or of a Material Subsidiary and its subsidiaries (taken as a whole on a consolidated basis as of the most recently completed fiscal year of the Corporation) to one or more of the Yucaipa Entities or one or more of their Affiliated Companies, whether in one transaction or in a series of transactions;

(3) the sale by the Corporation or any subsidiary of the Corporation of capital stock of the Corporation or such subsidiary or of securities convertible by their terms into such capital stock, to any of the Yucaipa Entities or any of their Affiliated Companies where the aggregate consideration paid by the Yucaipa Entities or their Affiliated Companies for such capital stock or convertible securities in any consecutive one hundred and eighty (180) day period exceeds twenty-five million dollars ($25,000,000) or, prior to May 29, 2009, exceeds one hundred million dollars ($100,000,000) in the aggregate; and

(4) any amendment to the provisions set forth in this Article TENTH.

(b) Certain Definitions. For purposes of this Article TENTH, a “Supermajority” of the Common Stock of the Corporation shall mean a percentage equal to (1) the percentage (as of the record date for any applicable vote or consent) of the Common Stock owned or held by the Yucaipa Entities together with their Affiliated Companies, plus (2) seven percent (7%). For purposes of this Article TENTH, a “Supermajority” of the Voting Stock of the Corporation shall mean a percentage equal to (1) if the voting rights (on an as converted basis or otherwise) of any outstanding Preferred Stock owned or held by the Yucaipa Entities and their Affiliated Companies is not materially disproportionate to the voting rights of the Common Stock, the percentage (as of the record date for any applicable vote or consent) of the Voting Stock (instead of Common Stock) owned or held by the Yucaipa Entities together with their Affiliated Companies, plus (2) seven percent (7%). For purposes of this Article TENTH, “Material Subsidiary” shall mean any subsidiary of the Corporation (i) the assets of which

exceed twenty percent (20%) of the total assets of the Corporation and its subsidiaries taken as a whole on a consolidated basis as of the end of the most recently completed fiscal year of the Corporation or (ii) that generated revenues which exceeded twenty percent (20%) of the total revenues of the Corporation and its subsidiaries on a consolidated basis as of the end of the most recently completed fiscal year of the Corporation. For the avoidance of doubt, for so long as the Corporation directly or indirectly owns more than fifty percent (50%) of the capital stock of Allied Systems (Canada) Company, such entity shall be considered a Material Subsidiary for purpose of this Article TENTH.

(c) Termination of Restrictions. On and after the earlier of May 29, 2009 or such date as the Yucaipa Entities and their Affiliated Companies own or hold in the aggregate either (1) seventy-five percent (75%) or more of the Common Stock of the Corporation or (2) if the voting rights (on an as converted basis or otherwise) of any outstanding Preferred Stock owned or held by the Yucaipa Entities and their Affiliated Companies are not materially disproportionate to the per share voting rights of the Common Stock, then seventy-five percent (75%) or more of the Voting Stock of the Corporation, the requirements of Section (a) of this Article TENTH shall be void and no longer given effect and the vote or consent of a Supermajority of the capital stock of the Corporation (voting together as a single class) shall no longer be required in order to effect any of the actions described in Section (a) of this Article TENTH.

ELEVENTH. The Corporation shall not issue any nonvoting equity securities to the extent prohibited by section 1123(a)(6) of title 11 of the United States Code (the “Bankruptcy Code”) as in effect on the date of the filing of this Amended Certificate of Incorporation with the Secretary of State of the State of Delaware; provided, however, that this Article ELEVENTH (i) will have no further force and effect beyond that required under section 1123(a)(6) of the Bankruptcy Code, (ii) will have such force and effect, if any, only for so long as section 1123(a)(6) of the Bankruptcy Code is in effect and applicable to the Corporation, and (iii) in all events may be amended or eliminated in accordance with such applicable law as from time to time may be in effect.

TWELFTH. (a) No Transfers in Violation of This Article TWELFTH. Any attempted Transfer (as defined below) of Common Stock that is not in compliance with this Article TWELFTH shall be void and shall not be recognized or registered by the Corporation, and the proposed Transferee shall not be treated as the owner of such Common Stock. Notwithstanding the foregoing, to the extent any such Transfer is effected or purported to have been effected and is not in compliance with this Article TWELFTH, the Corporation shall have the option to redeem, out of lawfully available funds therefor, any or all of the Common Stock Transferred (or purported to be Transferred) on such terms and subject to such conditions determined by the Board of Directors in its sole discretion. Any holder of Common Stock, however acquired, shall be deemed to have notice of and to have consented to the provisions of this Article TWELFTH.

(b) Prohibited Transfers. No holder of Common Stock shall Transfer any Common Stock to any person or entity, nor shall the Corporation issue, sell or otherwise Transfer any Common Stock to any person or entity, if, at the time of such Transfer, the Corporation has more than 290 holders of record (as such concept is understood for purposes of

Section 12(g) of the Securities Exchange Act of 1934, as amended, or any relevant rules promulgated thereunder (the “Exchange Act”)), or if the Corporation reasonably determines that such Transfer would, if effected, result in the Corporation having more than 290 holders of record. The limitations set forth in the immediately preceding sentence shall not prohibit: (1) a Transfer by a holder of Common Stock to another person or entity that, immediately prior to the Transfer, is a holder of record of Common Stock, (2) a Transfer by a holder of Common Stock to the Corporation, (3) a Transfer by the Corporation to a person or entity that, immediately prior to the Transfer, is a holder of record of Common Stock, (4) a Transfer of all Common Stock owned by the proposed transferor to a single person or entity who is treated as a single record holder under the Exchange Act, or (5) a Transfer so long as after giving effect to such Transfer the Corporation has no more than 290 holders of record (as such concept is understood for purposes of Section 12(g) of the Exchange Act).

(c) Termination of Restrictions. Section (a) and Section (b) of this Article TWELFTH shall be void and no longer given effect and the restrictions on Transfer therein shall no longer be in effect on and after the earlier of: (1) such time as the Corporation determines that it has more than 500 holders of record (as such concept is understood for purposes of Section 12(g) of the Exchange Act) of Common Stock, (2) only if the Corporation has not filed a Form 15 deregistering the Common Stock under the Exchange Act, November 30, 2007, (3) the listing of the Common Stock on the New York Stock Exchange, NASDAQ or AMEX, (4) the consummation of a sale of capital stock of the Corporation in an underwritten public offering registered under the Securities Act of 1933, as amended, with gross proceeds to the Corporation or the Selling Stockholders of not less than forty million dollars ($40,000,000) or (5) on the fifth business day following the Corporation’s receipt of written notice from any of the Yucaipa Entities or Affiliated Companies thereof, that they have determined, in their sole and absolute discretion, that the requirements of Section (a) and Section (b) of this Article TWELFTH shall be void and no longer given effect. Upon the Corporation’s determination that it has greater than 500 holders of record of Common Stock, the Corporation shall notify the record holders of Common Stock of such determination, but the failure of the Corporation to provide such notice shall not be a condition to the termination of the restrictions set forth in Section (a) and (b) of this Article TWELFTH. Notwithstanding the immediately preceding sentence, if Section (a) and Section (b) of this Article TWELFTH are made void and not effective pursuant to Section (c)(1) of this Article TWELFTH, and the Corporation later determines that it has less than 300 holders of record, then Section (a) and Section (b) of Article TWELFTH may be reinstated and again made effective and binding on all holders of Common Stock if and at such time as the Corporation provides written notice to at least a majority of the holders of record of Common Stock (other than the Yucaipa Entities) that such sections have been reinstated and are again effective.

(d) Certain Definitions. For purposes of this Article TWELFTH, “Transfer” means any transfer, donation, bequest, sale, assignment or other disposal or attempted disposal (including, without limitation, by way of merger, operation of law, pursuant to any domestic relations or other court order, whether with or without consideration and whether voluntarily or involuntarily or by operation of law). “Transferred” means the accomplishment of a Transfer, and “Transferee” means the recipient of a Transfer.

THIRTEENTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Amended Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.

FOURTEENTH. The Corporation elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.

FIFTEENTH. Other than the voting requirements set forth in Article TENTH of this Amended Certificate of Incorporation, the affirmative vote of the holders of at least a majority of the Voting Stock, voting together as a single class, shall be required to alter, amend or repeal, or to adopt any provision inconsistent with, this Amended Certificate of Incorporation.

EX-1.2 3 g07653exv1w2.htm EX-1.2 BYLAWS OF ALLIED SYSTEMS HOLDINGS, INC. EX-1.2 BYLAWS OF ALLIED SYSTEMS HOLDINGS, INC.

Exhibit 1.2

BYLAWS

ALLIED SYSTEMS HOLDINGS, INC.

TABLE OF CONTENTS


ARTICLE I. OFFICES AND RECORDS		1

Section 1.1	Registered Office	1
Section 1.2	Other Offices	1
Section 1.3	Books and Records	1

ARTICLE II. STOCKHOLDERS		1

Section 2.1	Annual Meeting	1
Section 2.2	Special Meeting	1
Section 2.3	Place of Meeting	1
Section 2.4	Notice of Meeting	2
Section 2.5	Adjournments	2
Section 2.6	Quorum	3
Section 2.7	Voting and Proxies	3
Section 2.8	Notice of Stockholder Business and Nominations	4
Section 2.9	Organization	7
Section 2.10	Inspectors of Elections, Conduct of Meetings	7
Section 2.11	Fixing Date of Determination of Stockholders of Record	8
Section 2.12	List of Stockholders Entitled to Vote	9
Section 2.13	Postponement and Cancellation of Meeting	9

ARTICLE III. BOARD OF DIRECTORS		9

Section 3.1	General Powers	9
Section 3.2	Number	10
Section 3.3	Organization	10
Section 3.4	Regular Meetings	10
Section 3.5	Special Meetings	10
Section 3.6	Notice	10
Section 3.7	Quorum	10
Section 3.8	Vacancies	11
Section 3.9	Committees	11
Section 3.10	Resignation and Removal	11
Section 3.11	Telephonic Meetings	12
Section 3.12	Action by Unanimous Consent of Directors	12
Section 3.13	Reliance upon Records	12
Section 3.14	Compensation	12

ARTICLE IV. OFFICERS		12

Section 4.1	Elected Officers	12
Section 4.2	Other Officers	13
Section 4.3	Resignation and Removal	13
Section 4.4	Vacancies	13


Section 4.5	Chief Executive Officer	13
Section 4.6	President	13
Section 4.7	Vice Presidents and Assistant Vice Presidents	13
Section 4.8	Secretary	14
Section 4.9	Treasurer	14
Section 4.10	Assistant Officers	14
Section 4.11	Compensation	14

ARTICLE V. CONTRACTS AND PROXIES		14

Section 5.1	Contracts	14
Section 5.2	Proxies	15

ARTICLE VI. INDEMNIFICATION AND INSURANCE		15

Section 6.1	Indemnification and Insurance	15

ARTICLE VII. STOCK		17

Section 7.1	Certificates	17
Section 7.2	Lost, Stolen or Destroyed Stock Certificates, Issuance of New Certificates	17

ARTICLE VIII. INFORMATION RIGHTS		17

Section 8.1	Access to Information	17

ARTICLE IX. MISCELLANEOUS PROVISIONS		19

Section 9.1	Fiscal Year	19
Section 9.2	Dividends	19
Section 9.3	Seal	19
Section 9.4	Form of Records	19
Section 9.5	Manner of Notice	19
Section 9.6	Waiver of Notice of Meetings of Stockholders, Directors and Committees	19

ARTICLE X. AMENDMENTS		20

BYLAWS
OF
ALLIED SYSTEMS HOLDINGS, INC.

May 29, 2007

Incorporated under the General Corporation Law of the State of Delaware.

ARTICLE I.
OFFICES AND RECORDS

Section 1.1 Registered Office. The registered office of Allied Systems Holdings, Inc. (the “Corporation”) in the State of Delaware shall be located in the City of Wilmington, County of New Castle, and the name and address of its registered agent is The Corporation Trust Company, 1209 Orange Street, in the City of Wilmington, County of New Castle, State of Delaware 19808.

Section 1.2 Other Offices. The Corporation may have such other offices, either within or without the State of Delaware, as the Board of Directors may from time to time designate or as the business of the Corporation may from time to time require.

Section 1.3 Books and Records. The books and records of the Corporation may be kept outside the State of Delaware at such place or places as may from time to time be designated by the Board of Directors.

ARTICLE II.
STOCKHOLDERS

Section 2.1 Annual Meeting. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

Section 2.2 Special Meeting. Special meetings of stockholders for any purpose or purposes may be called at any time by (i) the Chairman, (ii) a majority of the total authorized members of the Board of Directors, or (iii) by holders of not less than a majority of the total voting power of the outstanding shares of capital stock of the Corporation entitled to vote, voting together as a single class, but, other than as set forth in clauses (i), (ii) and (iii), such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

Section 2.3 Place of Meeting. The Board of Directors may designate the place of meeting for any meeting of the stockholders. If no designation is made by the Board of Directors, the place of meeting shall be the principal office of the Corporation. Notwithstanding the foregoing, the Board of Directors may, in its sole discretion, determine that the meeting shall not be held at any place, but shall be held solely by means of remote communication, subject to such guidelines and procedures as the Board of Directors may adopt, as permitted by applicable law.

Section 2.4 Notice of Meeting. Written or printed notice, stating the place, if any, date and hour of a meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting and the purpose or purposes for which the meeting is called, shall be prepared and delivered by the Corporation not less than ten days nor more than 60 days before the date of the meeting, either personally or by mail, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at such stockholder’s address as it appears on the books of the Corporation.

Without limiting the foregoing, any notice to stockholders given by the Corporation pursuant to this Section 2.4 shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation and shall also be deemed revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known to the Secretary or Assistant Secretary of the Corporation, the transfer agent or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. Notice given by a form of electronic transmission in accordance with these Bylaws shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice, (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice, (iii) if by a posting on an electronic network, together with separate notice to the stockholder of such specific posting, upon the later of such posting and the giving of such separate notice, and (iv) if by another form of electronic transmission, when directed to the stockholder.

For purposes of these Bylaws, “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

Section 2.5 Adjournments. Any meeting of stockholders, annual or special, may be adjourned by the chair of the meeting or by the holders of a majority of the total voting power of the outstanding shares of the Corporation voting together as a single class, from time to time to reconvene at the same or some other time, date and place. Notice need not be given of any such adjourned meeting if the time, date and place thereof are announced at the meeting at which the adjournment is taken. If the time, date and place of the adjourned meeting are not announced at the meeting at which the adjournment is taken, then the Secretary of the Corporation shall give written notice of the time, date and place of the adjourned meeting not less than ten days prior to the date of the adjourned meeting.

At an adjourned meeting at which a quorum is present, the stockholders may transact any business which might have been transacted at the original meeting. Once a share is represented for any purpose at a meeting, it shall be present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for the adjourned meeting. If the adjournment is for longer than 30 days, or, if after the adjournment

a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned meeting consistent with the new record date.

Section 2.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, at each meeting of stockholders, the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time until a quorum shall attend. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation or any subsidiary of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

Section 2.7 Voting and Proxies.

(A) General. Except as otherwise provided by or pursuant to the provisions of the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the Corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors a plurality of the votes cast shall be sufficient to elect. All other elections and questions shall, unless otherwise provided by the Certificate of Incorporation, these Bylaws, the rules or regulations of any stock exchange or quotation system applicable to the Corporation, or applicable law or pursuant to any regulation applicable to the Corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the Corporation, which are present in person or by proxy and entitled to vote thereon.

(B) Participation and Voting By Means of Remote Communication. If authorized by the Board of Directors in accordance with these Bylaws and applicable law, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication, (1) participate in a meeting of stockholders and (2) be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication; provided, that (i) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (ii) the Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the

stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.

Section 2.8 Notice of Stockholder Business and Nominations.

(A) Annual Meetings of Stockholders.

(1) Nominations of persons for election to the Board of Directors and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders only (i) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (ii) by or at the direction of the Board of Directors, or (iii) by any stockholder of the Corporation who was a stockholder of record of the Corporation on the record date of the meeting and at the time the notice provided for in this Section 2.8 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 2.8.

(2) So long as the Corporation’s common stock remains registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the Corporation’s obligation to file reports under the Exchange Act has not been suspended, this Section 2.8(A)(2) shall be in effect. For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of paragraph (A)(1) of this Section 2.8, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and any such proposed business other than the nominations of persons for election to the Board of Directors must constitute a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth day nor earlier than the close of business on the one hundred twentieth day prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that the date of the annual meeting is more than thirty days before or more than seventy days after such anniversary date, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred twentieth day prior to such annual meeting and not later than the close of business on the later of the ninetieth day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made by the Corporation). For purposes of the first annual meeting of stockholders of the Corporation held after the date when the Corporation’s Plan of Reorganization under Chapter 11 of the Bankruptcy Code takes effect, the first anniversary of such annual meeting shall be deemed to be May 25, 2008. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. Such stockholder’s notice shall set forth: (i) as to each person whom the stockholder proposes to nominate for election as a director (a) all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to and in accordance with Regulation 14A under the Exchange Act and (b) such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected; (ii) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought

before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (iii) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (a) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner, (b) the number of shares of capital stock of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner, (c) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, and (d) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or otherwise to solicit proxies from stockholders in support of such proposal or nomination. The foregoing notice requirements shall be deemed satisfied by a stockholder if the stockholder has notified the Corporation of his or her intention to present a proposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act and such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting. The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Corporation.

(3) So long as the Corporation’s common stock remains registered under the Exchange Act and the Corporation’s obligation to file reports under the Exchange Act is suspended, this Section 2.8(A)(3) shall be in effect. Notwithstanding anything in the second sentence of paragraph (A)(2) of this Section 2.8 to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation at an annual meeting is increased and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 2.8 shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which such public announcement is first made by the Corporation.

(4) If the Corporation has filed a Form 15 deregistering its common stock under the Exchange Act, and for so long as the Corporation’s obligation to file reports under the Exchange Act is suspended, then Sections 2.8(A)(2) and (3) shall not be given effect or be applicable. If the Corporation later becomes obligated to file reports under the Exchange Act or again registers its common stock under the Exchange Act, then Sections 2.8(A)(2) and (3) shall again be given effect.

(5) Notwithstanding anything to the contrary set forth in this Section 2.8, the provisions of Section 2.8(A), (B) and (C) shall not apply to nominations of individuals to serve as the Creditors Committee Director, the Yucaipa Directors or the Executive Director, each as defined in Section 1(a) of the Stockholders Agreement dated as of May 29, 2007, as amended from time to time, between the Corporation and the stockholders of the Corporation that are parties thereto (the “Stockholders Agreement”). Nomination of individuals to serve as Creditors Committee Director, the Yucaipa Directors and the Executive Director shall be governed by the procedures set forth in Section 1 of the Stockholders Agreement (but with respect to each such director, only for such time period as the Stockholders Agreement shall provide for nomination rights with respect to each such director).

(B) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (i) by or at the direction of the Board of Directors or (ii) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time the notice provided for in this Section 2.8 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and upon such election and who complies with the notice procedures set forth in this Section 2.8. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph (A)(2) of this Section 2.8 shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth day prior to such special meeting and not later than the close of business on the later of the ninetieth day prior to such special meeting or the tenth day following the day on which public announcement of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting is first made by the Corporation. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

(1) Only such persons who are nominated in accordance with the procedures set forth in this Section 2.8 shall be eligible to be elected at an annual or special meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.8. Except as otherwise provided by law, the chairman of the meeting shall have the power and duty (i) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.8 and (ii) if any proposed nomination or business was not made or proposed in compliance with this Section 2.8, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted, notwithstanding the foregoing provisions of this Section 2.8, if the stockholder (or a

qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation.

(2) For purposes of this Section 2.8, “public announcement” shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.

(3) Notwithstanding the foregoing provisions of this Section 2.8 and so long as the Corporation’s common stock remains registered under the Exchange Act, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.8. Nothing in this Section 2.8 shall be deemed to affect any rights (i) of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of Preferred Stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation.

Section 2.9 Organization. Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or in his absence by the Vice Chairman of the Board, if any, or in his absence by the Chief Executive Officer, or in his absence by the President, or in his absence by a Vice President, or in the absence of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his absence the chairman of the meeting may appoint any person to act as secretary of the meeting.

Section 2.10 Inspectors of Elections, Conduct of Meetings.

(A) Inspectors of Election. The Corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the Corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability.

(B) Duties. The inspectors shall (i) ascertain the number of shares of stock outstanding and the voting power of each, (ii) determine the number of shares of stock present in person or by proxy at such meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain, for a reasonable period, a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of such shares present in person or by proxy at such meeting and their count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of

stockholders of the Corporation, the inspectors may consider such information as is permitted by applicable law. The inspectors may appoint or retain other persons or entities to assist them in the performance of their duties. No person who is a candidate for an office at an election may serve as an inspector at such election.

(C) Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding officer of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting, (ii) rules and procedures for maintaining order at the meeting and the safety of those present, (iii) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine, (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof, and (v) limitations on the time allotted to questions or comments by participants. The presiding officer at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding officer should so determine, such person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

Section 2.11 Fixing Date of Determination of Stockholders of Record.

(A) Fixing the Record Date. Except as is otherwise prohibited by law or these Bylaws, in order that the Corporation may determine the stockholders entitled (i) to notice of or to vote at any meeting of stockholders or any adjournment thereof, (ii) to express consent to corporate action in writing without a meeting, (iii) to receive payment of any dividend or other distribution or allotment of any rights, (iv) to exercise any rights in respect of any change, conversion or exchange of stock, or (v) to take, receive or participate in any other action, the Board of Directors may fix a record date, which shall not be earlier than the date upon which the resolution fixing the record date is adopted by the Board of Directors and which (1) in the case of a determination of stockholders entitled to notice of or to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, be not more than 60 nor less than 10 days before the date of such meeting; (2) in the case of a determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than 10 days from the date upon which the resolution fixing the record date is adopted by the Board of Directors and (3) in the case of any other action, shall not be more than 60 days before such action.

(B) If Record Date is Not Fixed. If no record date is fixed, (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, (ii) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action, and (iii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

(C) Adjourned Meetings. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting, but the Board of Directors may fix a new record date for the adjourned meeting.

Section 2.12 List of Stockholders Entitled to Vote. The Secretary shall prepare, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting; or (ii) during ordinary business hours, at the principal place of business of the Corporation. If the meeting is to be held at a place, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, the list shall also be open to the examination of any stockholder during the whole time thereof on a reasonably accessible electronic network and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

Section 2.13 Postponement and Cancellation of Meeting. Any previously scheduled annual or special meeting of the stockholders may be postponed, and any previously scheduled annual or special meeting of the stockholders called by the Board of Directors may be canceled, by resolution of the Board of Directors upon public notice given prior to the time previously scheduled for such meeting of stockholders.

ARTICLE III.
BOARD OF DIRECTORS

Section 3.1 General Powers. The business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors. In addition to the powers and authorities expressly conferred upon them by these Bylaws, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by

the Certificate of Incorporation or by these Bylaws required to be exercised or done by the stockholders.

Section 3.2 Number. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specific circumstances, the number of directors that shall constitute the whole Board of Directors shall be the number from time to time fixed exclusively pursuant to a resolution adopted by a majority of the Board Directors. A director need not be a stockholder of the Corporation. Except as otherwise provided by the Certificate of Incorporation, these Bylaws or applicable law, the directors shall be elected at the annual meeting of stockholders, and each director elected shall hold office for a term expiring at the next annual meeting of stockholders and until his or her successor has been duly elected and qualified or until his or her earlier death, resignation, retirement, disqualification or removal from office.

Section 3.3 Organization. Meetings of the Board of Directors shall be presided over by the Chairman of the Board, if any, or in his absence by the Vice Chairman of the Board, if any, or in his absence by the Chief Executive Officer, or in his absence by the President, or in their absence by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his absence the chairman of the meeting may appoint any person to act as secretary of the meeting.

Section 3.4 Regular Meetings. A regular meeting of the Board of Directors may be held without other notice than this Bylaw immediately after, and at the same place, if any, as, each annual meeting of stockholders. The Board of Directors may, by resolution, provide the time and place for the holding of additional regular meetings without other notice than such resolution.

Section 3.5 Special Meetings. Special meetings of the Board of Directors may be called by the Chairman, the Chief Executive Officer, the President or by two or more directors. The person or persons authorized to call special meetings of the Board of Directors may fix the place and time of the meetings.

Section 3.6 Notice. Notice of each special meeting of the Board of Directors shall be given by the Secretary. Notice of each such meeting shall state the date, time and place of the meeting, and shall be delivered to each director either personally or by telegram, fax, telephone or other means of electronic transmission, at least 24 hours before the time at which such meeting is to be held or mailed by first-class mail, postage prepaid, addressed to the director at his residence or usual place of business, at least three days before the day on which such meeting is to be held. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting, except for amendments to these Bylaws as provided under Article X hereof. A meeting may be held at any time without notice if all of the directors are present or if those not present waive notice of the meeting in writing, either before or after such meeting.

Section 3.7 Quorum. A number of directors equal to at least a majority of the whole Board shall constitute a quorum for the transaction of business, but if at any meeting of the Board of Directors there shall be less than a quorum present, a majority of the directors present

may adjourn the meeting from time to time without further notice. Except in cases in which the Certificate of Incorporation, these Bylaws or applicable law otherwise provides, the vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

Section 3.8 Vacancies. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specific circumstances, and unless otherwise provided by law or the Certificate of Incorporation, vacancies resulting from death, resignation, retirement, disqualification, removal from office or other cause, and newly created directorships resulting from any increase in the authorized number of directors, may be filled only by the affirmative vote of a majority of the remaining directors, though less than a quorum of the Board of Directors, and each director so chosen shall hold office for a term expiring at the next annual meeting of stockholders and until his or her successor has been duly elected and qualified or until his or her earlier death, resignation or removal from office. No decrease in the number of authorized directors constituting the whole Board shall shorten the term of any incumbent director.

Section 3.9 Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it.

Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules, each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to this Article III of these Bylaws.

Section 3.10 Resignation and Removal. Any director of the Corporation may resign at any time upon notice given in writing or by electronic transmission to the Board of Directors, the Chairman of the Board or the Secretary. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon its delivery. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specific circumstances, any director, or the entire Board of Directors, may be removed from office at any time, with or without cause, by the affirmative vote of the holders of at least a majority of the voting power of the outstanding shares of stock entitled to vote generally in the election of directors, voting together as a single class.

Section 3.11 Telephonic Meetings. Members of the Board of Directors, or any committee of directors designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.11 shall constitute presence in person at such meeting.

Section 3.12 Action by Unanimous Consent of Directors. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing (which may be in counterparts) or by electronic transmission, and the written consent or consents or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or such committee. Such filing shall be made in paper form if the minutes of the Corporation are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

Section 3.13 Reliance upon Records. Every director, and every member of any committee of the Board of Directors, shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or committees of the Board of Directors, or by any other person as to matters the director or member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation, including, but not limited to, such records, information, opinions, reports or statements as to the value and amount of the assets, liabilities and/or net profits of the Corporation, or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared and paid, or with which the Corporation’s capital stock might properly be purchased or redeemed.

Section 3.14 Compensation. The Board of Directors shall have the authority to fix the compensation, including fees and reimbursement of expenses, of directors for services to the Corporation in any capacity; provided, that no such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

ARTICLE IV.
OFFICERS

Section 4.1 Elected Officers. Unless otherwise determined by the Board of Directors, the officers of the Corporation shall consist of the Chief Executive Officer, the President, one or more Vice Presidents, the Secretary and the Treasurer. Any two or more offices may be held by the same person. Such officers shall be elected from time to time by the Board of Directors to hold office until their respective successors shall have been duly elected and qualified, or until death, resignation or removal, as hereafter provided in these Bylaws.

Section 4.2 Other Officers. The Board of Directors may from time to time elect, or the Chief Executive Officer may appoint, such other officers (including one or more Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers) and such agents as may be necessary or desirable for the conduct of the business of the Corporation. Such other officers and agents shall have such duties and shall hold their offices for such terms as shall be provided in these Bylaws or as may be prescribed by the Board of Directors or by the Chief Executive Officer.

Section 4.3 Resignation and Removal. Any officer or agent of the Corporation may resign at any time by giving a written notice of resignation to the Board of Directors, the Chief Executive Officer, the President or the Secretary. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon its receipt. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Any officer or agent of the Corporation may be removed, either with or without cause, at any time, by a vote of the majority of the whole Board of Directors, or, except in the case of an officer or agent elected by the Board of Directors, by the Chief Executive Officer. Such removal shall be without prejudice to the contractual rights, if any, of the person so removed.

Section 4.4 Vacancies. A vacancy in any office, whether arising from death, resignation, removal or any other cause, may be filled for the unexpired portion of the term of the office, which shall be vacant in the manner prescribed in these Bylaws for the regular election or appointment of such office.

Section 4.5 Chief Executive Officer. The Chief Executive Officer shall have the general control and management of the business and affairs of the Corporation, under the direction of the Board of Directors. He or she shall have power: (i) to select and appoint all necessary officers and employees of the Corporation except such officers as under these Bylaws are to be elected by the Board of Directors; (ii) to remove all appointed officers or employees whenever he or she shall deem it necessary, and to make new appointments to fill the vacancies; and (iii) to suspend from office for cause any elected officer, which shall be forthwith declared in writing to the Board of Directors. The Chief Executive Officer shall have such other authority and shall perform such other duties as may be determined by the Board of Directors.

Section 4.6 President. The President shall have such authority and perform such duties relative to the business and affairs of the Corporation as may be determined by the Board of Directors or the Chief Executive Officer. In the absence of both the Chairman and the Chief Executive Officer, the President shall preside at meetings of the stockholders and of the directors. If the Board of Directors shall not have elected a Chief Executive Officer, the President shall have such authority and shall perform such additional duties as is provided in these Bylaws for the office of Chief Executive Officer.

Section 4.7 Vice Presidents and Assistant Vice Presidents. Each Vice President and each Assistant Vice President shall have such powers and perform all such duties as from time to time may be determined by the Board of Directors, the Chief Executive Officer, the President or the senior officer to whom such officer reports.

Section 4.8 Secretary. The Secretary shall record the proceedings of all meetings of the Board of Directors, the committees of the Board of Directors and the stockholders, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and, if necessary or appropriate, affix and attest the seal to all documents to be executed on behalf of the Corporation under its seal, shall see that the books, reports, statements, certificates and other documents and records required by law to be kept and filed are properly kept and filed, and, in general, shall perform all the duties incident to the office of Secretary and such other duties as from time to time may be determined by the Board of Directors, the Chief Executive Officer or the President.

Section 4.9 Treasurer. The Treasurer shall exercise general supervision over the receipt, custody and disbursement of corporate funds. The Treasurer shall have such further powers and duties as may be determined from time to time by the Board of Directors, the Chief Executive Officer or the President.

Section 4.10 Assistant Officers. Any Assistant Secretary or Assistant Treasurer elected or appointed as heretofore provided shall perform the duties and exercise the powers of the Secretary and Treasurer, respectively, in their absence or inability to act, and shall perform such other duties and have such other powers as the Board of Directors, the Chief Executive Officer, the President, the Secretary or the Treasurer (as the case may be) may from time to time prescribe.

Section 4.11 Compensation. The compensation of the officers of the Corporation for their services as such officers shall be fixed from time to time by the Board of Directors; provided, however, that the Board of Directors may by resolution delegate to the Chief Executive Officer the power to fix compensation of non-elected officers and agents appointed by the Chief Executive Officer. An officer of the Corporation shall not be prevented from receiving compensation by reason of the fact that such officer is also a director of the Corporation, but any such officer who shall also be a director shall not have any vote in the determination of such officer’s compensation.

ARTICLE V.
CONTRACTS AND PROXIES

Section 5.1 Contracts. Except as otherwise required by law, the Certificate of Incorporation or these Bylaws, any contracts or other instruments may be executed and delivered in the name and on behalf of the Corporation by such officer or officers (including any assistant officer) of the Corporation as the Board of Directors may from time to time direct. Such authority may be general or confined to specific instances as the Board of Directors may determine. The Chief Executive Officer, the President or any Vice President may execute bonds, contracts, deeds, leases and other instruments to be made or executed for or on behalf of the Corporation. Subject to any restrictions imposed by the Board of Directors, the Chief Executive Officer, the President or any Vice President of the Corporation may delegate contractual power to others under his jurisdiction, it being understood, however, that any such delegation of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power.

Section 5.2 Proxies. Unless otherwise provided by resolution adopted by the Board of Directors, the Chief Executive Officer, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the Corporation, in the name and on behalf of the Corporation, to cast the votes which the Corporation may be entitled to cast as the holder of stock or other securities or interests in any other corporation or entity, any of whose stock or other securities or interests may be held by the Corporation, at meetings of the holders of the stock or other securities or interests, of such other corporation or entity, or to consent in writing, in the name of the Corporation as such holder, to any action by such other corporation or entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper in the premises.

ARTICLE VI.
INDEMNIFICATION AND INSURANCE

Section 6.1 Indemnification and Insurance.

(A) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she or a person of whom he or she is the legal representative is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of any other corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving as a director or officer shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, against all expense, liability and loss (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred by such person in connection therewith, and such indemnification shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of his or her heirs, executors and administrators, provided, however, that except as provided in paragraph (B) of this Article VI with respect to proceedings seeking to enforce rights to indemnification, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) initiated by such person was authorized in the specific case by the Board of Directors of the Corporation. The Corporation may, by action of its Board of Directors, provide indemnification and advancement to employees and agents of the Corporation with the same scope and effect as the indemnification and advancement of directors and officers provided for in this Article VI.

(B) Recovery of Unpaid Indemnification. If a claim under paragraph (A) of this Section 6.1 is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant also shall be entitled to be paid the expense of prosecuting such claim. It shall be a

defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel or stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the Corporation (including the Board of Directors, independent legal counsel or stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

(C) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article VI shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

(D) Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware.

(E) Advancement. The Corporation shall pay the expenses (including attorneys’ fees) incurred by a person described in the first sentence of paragraph (A) of this Article VI (an “Article VI Person”) in defending any such proceeding in advance of its final disposition; provided, however, that if the General Corporation Law of the State of Delaware requires, the payment of such expenses incurred by an Article VI Person in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such Article VI Person while a director or officer including, without limitation, service to an employee benefit plan), in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking by or on behalf of such Article VI Person to repay all amounts so advanced if it shall ultimately be determined that such Article VI Person is not entitled to be indemnified under this Bylaw or otherwise.

(F) Amendment or Repeal. Any amendment or repeal of this Article VI shall not adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such amendment or repeal.

(G) Other Sources. The Corporation’s obligation, if any, to indemnify or to advance expenses to any person who was or is serving at its request as a director or officer of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or nonprofit enterprise.

ARTICLE VII.
STOCK

Section 7.1 Certificates. The shares of the Corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Every holder of stock shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman or Vice Chairman of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation certifying the number of shares owned by him in the Corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.

Section 7.2 Lost, Stolen or Destroyed Stock Certificates, Issuance of New Certificates. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

ARTICLE VIII.
INFORMATION RIGHTS

Section 8.1 Access to Information.

(A) Subject to the provisions of this Article VIII, in the event that the Corporation files a Form 15 deregistering its common stock under the Exchange Act and is not required to file periodic reports, information and documents with the Securities and Exchange Commission pursuant to the Exchange Act, the Corporation will use commercially reasonable efforts to make available to the holders of its common stock, on a secure website, the following information relating to the Corporation and its subsidiaries:

(1) no later than 120 days after the end of each fiscal year, an audited consolidated balance sheet of the Corporation and its subsidiaries as of the end of such fiscal year and the related audited consolidated statements of income, stockholders’ equity and cash flows for the fiscal year then ended, prepared in accordance with the United States generally accepted accounting principals (“GAAP”) and certified by a firm of independent public accountants of recognized national standing selected by the Board of Directors; and

(2) no later than 60 days after the end of each fiscal quarter (other than the last quarter of the Corporation’s fiscal year), an unaudited consolidated balance sheet of the Corporation and its subsidiaries and the related unaudited consolidated statements of income, stockholders’ equity and cash flows as of and for the period then ended, prepared in accordance with GAAP, subject to audit adjustments.

If the subject financial statements, or any portion thereof, cannot be made available within the time periods set forth above without unreasonable effort or expense by the Corporation or for any other reason (including the failure by an accountant to certify or provide a report), then the Corporation will indicate on the secure website the reasons such financial statements cannot be made available and the Corporation will use commercially reasonable efforts to make such financial statements available on the secure website within 15 days following the initially prescribed date. If the subject financial statements still cannot be made available without unreasonable effort or expense by the Corporation or for any other reason, the Corporation shall not be in violation of this Article VIII so long as the Corporation has used its commercially reasonable efforts to make them available as prescribed in this Section 8.1(A).

(B) No stockholder shall be provided with access to any information that is made available via a secure website unless and until such stockholder has electronically certified to the host of the website that such stockholder will comply with such customary and reasonable confidentiality provisions as are provided by the host of the website, as prepared by the Corporation (the “Confidentiality Provisions”), and the other restrictions reasonably imposed by the host or the Corporation; provided, that any such stockholder may share the financial information specified in subsection (1) and (2) of Section (A) of this Article VIII with a prospective transferee of such stockholder’s shares of the common stock if such prospective transferee has electronically certified to the independent, third-party host of the secure website that such proposed transferee will comply with the Confidentiality Provisions and the other restrictions reasonably imposed by the host or the Corporation and such prospective transferee is not affiliated with any competitor, customer or supplier or is not an employee of the Corporation that is set forth on the written list of competitors, customers, suppliers and employees of the Corporation which may be furnished by the Corporation to the host of the website from time to time.

(C) Notwithstanding anything to the contrary in this Article VIII, the Corporation may withhold and shall not be obligated to provide to the holders of its common stock any information that the Board of Directors determines to be competitively sensitive.

(D) The provisions of and all obligations set forth in this Article VIII shall not be in effect at any time when the Corporation is required to file periodic reports, information and documents with the Securities and Exchange Commission. Furthermore, the provisions of and all obligations set forth in this Article VIII shall terminate upon the first to occur of (i) the consummation of a “Sale of the Company” (as defined in the Stockholders Agreement) or (ii) the Yucaipa Stockholders (as defined in the Stockholders Agreement) and the Yucaipa Affiliated Companies (as defined in the Stockholders Agreement) owning, holding or possessing in the aggregate of either (x) ninety-five percent (95%) or more of the outstanding common stock of the Corporation or (y) if the voting rights of any outstanding preferred shares of stock of the Corporation owned or held by the Yucaipa Stockholders and the Yucaipa Affiliated Companies

are not materially disproportionate to the voting rights of the common stock of the Corporation, ninety-five percent (95%) or more of the total voting power of the outstanding shares of capital stock of the Corporation.

(E) Notwithstanding the foregoing, this Article X may not be amended so as to limit, restrict or reduce the information rights of the stockholders of the Corporation except by either (i) the vote or consent of ninety-five percent (95%) or more of the outstanding common stock or (ii) if the voting rights (on an as converted basis or otherwise) of any outstanding preferred shares of stock of the Corporation owned or held by the Yucaipa Stockholders and the Yucaipa Affiliated Companies are not materially disproportionate to the voting rights of the common stock of the Corporation, ninety-five percent (95%) of the total voting power of the outstanding shares of capital stock of the Corporation shall be required.

ARTICLE IX.
MISCELLANEOUS PROVISIONS

Section 9.1 Fiscal Year. The fiscal year of the Corporation shall be the calendar year, unless otherwise determined by resolution of the Board of Directors.

Section 9.2 Dividends. The Board of Directors may from time to time declare, and the Corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and the Certificate of Incorporation.

Section 9.3 Seal. The corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

Section 9.4 Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method; provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

Section 9.5 Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the Corporation. Notice to directors may be given by telegram, fax, telephone or other means of electronic transmission.

Section 9.6 Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

ARTICLE X.
AMENDMENTS

In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the Bylaws of the Corporation, except as otherwise provided by law and subject to the power of the stockholders of the Corporation to alter or repeal any Bylaw whether adopted by them or otherwise. The Bylaws may be amended, altered or repealed at any meeting of the Board of Directors or of the stockholders.

Except as otherwise provided in the Certificate of Incorporation or these Bylaws and in addition to any other vote required by law, the affirmative vote of the holders of not less than (i) a majority of the outstanding shares of common stock of the Corporation or (ii) so long as the voting rights of any outstanding preferred shares of stock of the Corporation owned or held by the Yucaipa Stockholders and the Yucaipa Affiliated Companies are not materially disproportionate to the voting rights of the common stock of the Corporation, a majority of the total voting power of the outstanding shares of stock (instead of the outstanding common stock) entitled to vote, voting together as a single class, shall be required in order for stockholders to alter, amend or repeal, or to adopt any provision inconsistent with, these Bylaws.

EX-4.1 4 g07653exv4w1.htm EX-4.1 FORM OF STOCKHOLDERS' AGREEMENT EX-4.1 FORM OF STOCKHOLDERS' AGREEMENT

Exhibit 4.1

STOCKHOLDERS AGREEMENT

by and among

ALLIED SYSTEMS HOLDINGS, INC.

and

The Stockholders of Allied Systems Holdings, Inc.

Dated as of ________, 2007

TABLE OF CONTENTS


1. Board of Directors			1

2. Subscription Right			3

3. Legends			4

4. Certain Required Approvals			5

5. Representations and Warranties of Stockholders			6

6. Restrictions on Transfer; Transfers in Violation of Certificate			6

7. Definitions			6

8. Miscellaneous			11

Exhibit A — Joinder

STOCKHOLDERS AGREEMENT

THIS STOCKHOLDERS AGREEMENT (this “Agreement”) is made as of ___, 2007, by and among Allied Systems Holdings, Inc., a Delaware corporation (the “Company”), Yucaipa American Alliance Fund I, LP, a Delaware limited partnership (“YAAF”), Yucaipa American Alliance (Parallel) Fund I, LP, a Delaware limited partnership (“YAAF Parallel” and, together with YAAF, the “Yucaipa Stockholders”), each of the Stockholders (as defined in Section 7) named on the signature pages hereto and each other Person who otherwise hereafter becomes a party to this Agreement by executing the Joinder attached as Exhibit A. Otherwise undefined capitalized terms used herein are defined in Section 7 hereof.

WHEREAS, Allied Holdings, Inc., a Georgia corporation (“Allied Georgia”), filed a plan of reorganization (the “Plan”) under Chapter 11 of the United States Code (the “Bankruptcy Code”) before the United States Bankruptcy Court for the Northern District of Georgia (the “Bankruptcy Court”) to effect a final restructuring of Allied Georgia;

WHEREAS, on ___, 2007 (the “Effective Date”) the Plan became effective;

WHEREAS, on the Effective Date, Allied Georgia merged with and into the Company, with the Company surviving the merger, and shares of Common Stock were issued to the Stockholders pursuant to the Plan; and

WHEREAS, pursuant to the Plan, the Stockholders have named on the signature pages hereto have executed this Agreement to govern certain rights of the Stockholders and to provide certain other rights and obligations among them;

NOW THEREFORE, in consideration of the promises and mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement, intending to be legally bound, hereby agree as follows:

1. Board of Directors.

(a) From and after the date hereof and until the provisions of this Section 1 cease to be effective in accordance with their terms, each Stockholder shall vote all of his, her or its Shares entitled to vote thereon, and the Company shall take all necessary and desirable actions within its control (including, without limitation, calling special board and stockholder meetings), so that:

(i) the authorized number of directors on the Company’s board of directors (the “Board”) shall be established at such number (but not less than five during the two-year period ending on the second anniversary of the Effective Date) as the Board shall determine from time to time;

(ii) such representatives constituting not less than a majority of the directors on the Board as are designated by the Yucaipa Stockholders from time to time shall be elected to the Board (the “Yucaipa Directors”);

(iii) during the two-year period ending on the second anniversary of the Effective Date, one representative designated by the Creditors Committee and reasonably satisfactory to the Yucaipa Stockholders from time to time shall be elected to the Board (the “Creditors Committee Director”);

(iv) the individual serving as the chief executive officer of the Company from time to time shall be elected to the Board (the “Executive Director”);

(v) the composition of the board of directors of each of the Company’s subsidiaries shall be as determined by the Board;

(vi) the removal from the Board without cause of any Yucaipa Directors shall be only upon the written request of the Yucaipa Stockholders;

(vii) if the Executive Director ceases to be the chief executive officer of the Company for any reason, such individual shall be removed as a director promptly after such cessation;

(viii) during the two-year period ending on the second anniversary of the Effective Date, (A) the removal from the Board of the Creditors Committee Director without cause shall be only upon the written request of the Creditors Committee and (B) in the event that any Creditors Committee Director for any reason ceases to serve as a member of the Board during his or her term of office, the resulting vacancy on the Board shall be filled by a representative designated by the Creditors Committee that is reasonably satisfactory to the Yucaipa Stockholders;

(ix) during the two-year period ending on the second anniversary of the Effective Date, the Board shall not designate any of its authority to an executive committee (or to any committee performing a similar function however designated) unless the membership of such committee includes the Creditors Committee Director; and

(x) in the event that any representative designated by the Yucaipa Stockholders hereunder for any reason ceases to serve as a member of the Board during his or her term of office, the resulting vacancy on the Board shall be filled by a representative designated by the Yucaipa Stockholders.

The Company shall pay all reasonable out-of-pocket expenses incurred by each director in connection with attending regular and special meetings of the Board and any committee thereof. The Company and the Board may grant board observation rights to the Teamsters National Automobile Transportation Industry Negotiating Committee and other Persons.

(b) If any party fails to designate a representative to fill a directorship pursuant to the terms of this Section 1, the election of a person to such directorship shall be accomplished in accordance with the Company’s bylaws and applicable law.

(c) The provisions of and all rights under this Section 1 will terminate on the first to occur of (i) the consummation of a Qualified Public Offering, (ii) the consummation of a Sale of the Company or (iii) with respect to Section 1(a)(iii), Section 1(a)(viii) and Section 1(a)(ix) only, the second anniversary of the Effective Date.

2. Subscription Right.

(a) If the Company authorizes the issuance or sale of any New Securities to any Person (including a Yucaipa Stockholder) solely for cash consideration (or for consideration that includes the extension of credit to the Company or any of its subsidiaries if such issuance relates to a debt financing provided by a Yucaipa Stockholder or Yucaipa Affiliated Company), then the Company shall offer to sell to the Yucaipa Stockholders and each Stockholder that qualifies as a Subscribing Other Stockholder at the time of the particular issuance or sale (each, a “Subscription Holder”) a portion of such New Securities up to an amount of such New Securities equal to the quotient determined by dividing (1) the number of shares of Common Stock held by such Subscription Holder at such time by (2) the total number of shares of Common Stock held by all Subscription Holders at such time. Each Subscription Holder shall be entitled to purchase such New Securities on at least as favorable terms to the Subscription Holders as the terms under which such New Securities are to be offered to such Person (including a Yucaipa Stockholder); provided that if such third parties are required to also purchase other securities of the Company, Subscription Holders exercising their rights pursuant to this Section 2 shall also be required to purchase the same strip of securities (on the same terms and conditions) that such third parties are required to purchase. The purchase price payable for the New Securities offered to the Subscription Holders hereunder shall be payable in cash if the New Securities are offered solely for cash consideration. If the New Securities are offered in connection with a debt financing provided by a Yucaipa Stockholder or a Yucaipa Affiliated Company, then each Subscribing Other Stockholder will be offered the opportunity to participate in such debt financing on terms at least as favorable in the aggregate as those given to such Yucaipa Stockholder or Yucaipa Affiliated Company, including the purchase price for the New Securities.

(b) In order to exercise its purchase rights hereunder, each Subscription Holder must, within 20 days after receipt of written notice from the Company describing in reasonable detail the New Securities being offered, the purchase price thereof, the payment terms and such holder’s percentage allotment, deliver a written notice to the Company describing its election hereunder. If any Subscription Holder having subscription rights under this Section 2 fails to exercise his, her or its subscription rights in full within such 20-day period, the Company shall offer the New Securities that were the were not so subscribed to all Subscription Holders who exercised their subscription rights in full with respect to such New Securities by delivery of written notice thereto. Each such Subscription Holder will thereafter have an additional 10 days after receipt of such written notice from the Company to accept such offer of New Securities, in whole or in part, by written notice to the Company specifying the maximum number of New Securities which such Subscription Holder has elected to purchase; provided, that, in the event that the aggregate number of New Securities that the Subscription Holders have elected to purchase exceeds that aggregate number of remaining New Securities, such New Securities will be allocated upon the electing Subscription Holders pro rata based on the total number of shares of Common Stock held by such electing Subscription Holders at such time.

(c) Upon the expiration of the offering period described above, the Company shall be entitled to sell such New Securities which Subscription Holders have not elected to purchase during the 90 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to such holders. Any New Securities offered or sold by the Company after such 90-day period must be reoffered to the Subscription Holders pursuant to the terms of this Section 2.

(d) Notwithstanding the foregoing, if the Board determines that it should, in the best interests of the Company, issue New Securities which would otherwise be required to be offered to the Subscription Holders pursuant to this Section 2 prior to their issuance, the Company may issue such New Securities without first complying with the provisions of this Section 2; provided, however, that within 45 days after such issuance the Company shall offer to each Subscription Holder the opportunity to purchase the number of New Securities that such Subscription Holder would have otherwise been entitled to purchase pursuant to the terms of this Section 2.

(e) The provisions of and all rights in Section 2 above shall terminate upon the first to occur of (i) the listing of the Common Stock on a Nationally Recognized Exchange, (ii) the consummation of a Qualified Public Offering or (iii) the consummation of a Sale of the Company.

3. Legends. Each certificate evidencing Shares and each certificate issued in exchange for or upon the transfer of any Shares shall be stamped or otherwise imprinted with a legend in substantially the following form:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A STOCKHOLDERS AGREEMENT, DATED AS OF ___, 2007, AMONG THE ISSUER AND CERTAIN OF THE ISSUER’S STOCKHOLDERS. A COPY OF SUCH STOCKHOLDERS AGREEMENT (AS AMENDED, MODIFIED OR SUPPLEMENTED FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS THEREOF) IS AVAILABLE AT THE ISSUER’S PRINCIPAL EXECUTIVE OFFICES AND WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE ISSUER’S AMENDED CERTIFICATE OF INCORPORATION, WHICH PROVIDES FOR, AMONG OTHER THINGS, CERTAIN RESTRICTIONS ON THE TRANSFER OF SUCH SECURITIES AND THE ISSUER’S OPTION TO REDEEM SUCH SECURITIES IN CONNECTION WITH A TRANSFER IN VIOLATION OF SUCH RESTRICTIONS. NO REGISTRATION OR TRANSFER OF THESE SECURITIES

WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS AND UNTIL SUCH RESTRICTIONS HAVE BEEN COMPLIED WITH. A COPY OF SUCH AMENDED CERTIFICATE OF INCORPORATION (AS AMENDED, MODIFIED OR SUPPLEMENTED FROM TIME TO TIME) IS AVAILABLE AT THE ISSUER’S PRINCIPAL EXECUTIVE OFFICES AND WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.

4. Certain Required Approvals.

(a) Until the second anniversary of the Effective Date, the Company shall not, and shall not cause or permit any subsidiary of the Company to, sell or transfer any of its or their properties or assets to, or purchase any property or assets from, or enter into any contract or agreement with, any Yucaipa Stockholder or Yucaipa Affiliated Company (an “Affiliate Transaction”), unless:

(i) such Affiliate Transaction has been approved by either (1) a majority of the disinterested directors on the Board or (2) all of the directors (including the Creditors Committee Director) then serving on the Board; or

(ii) such Affiliate Transaction is approved by the vote or consent of holders of either a Supermajority of the Common Stock or a Supermajority of the capital stock of the Company; or

(iii) the Company has received an opinion as to the fairness to the Company and/or its subsidiary(ies) of such Affiliate Transaction, from a financial point of view, issued by any of FTI Consulting, Inc., Citigroup Global Markets, Inc., Credit Suisse Securities (USA) LLC, Goldman, Sachs & Co., Deutsche Bank Securities Inc. or Valuation Research Corporation (or any of their respective Affiliates) or any other accounting, appraisal or investment banking firm of national standing reasonably acceptable to the Creditors Committee Director; or

(iv) the Affiliate Transaction involves an issuance of debt or equity securities by the Company or any of its subsidiaries, and each Subscribing Other Stockholder is offered the opportunity to purchase such debt or equity securities on terms no less favorable, in the aggregate, than those offered to the Yucaipa Stockholders and the Yucaipa Affiliated Companies participating in such Affiliate Transaction and in accordance with the pro rata interest of each Subscribing Other Stockholder in the total number of shares of Common Stock then issued and outstanding; or

(v) such Affiliate Transaction constitutes a Permitted Transaction.

(b) The provisions of and all restrictions set forth in Section 4 above shall terminate upon the first to occur of (i) the second anniversary of the Effective Date, (ii) the listing of the Common Stock or other equity securities of the Company on a Nationally Recognized Exchange, (iii) the consummation of a Qualified Public Offering, (iv) the

consummation of a Sale of the Company or (v) the Yucaipa Stockholders and the Yucaipa Affiliated Companies owning, holding or possessing in the aggregate either (A) seventy-five percent (75%) or more of the outstanding Common Stock or (B) if the voting rights (on an as converted basis or otherwise) of any outstanding Preferred Stock owned, held or possessed by the Yucaipa Stockholders and the Yucaipa Affiliated Companies are not materially disproportionate to the per share voting rights of the Common Stock, seventy-five percent (75%) or more of the voting power of the outstanding shares of capital stock of the Company.

5. Representations and Warranties of Stockholders. Each Stockholder represents and warrants, individually and not jointly and severally, to the other parties hereto that (a) such Stockholder has full power and authority to execute, deliver and perform its obligations under this Agreement; (b) this Agreement has been duly and validly authorized, executed and delivered by such Stockholder, and constitutes a valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms except to the extent that enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally; (c) such Stockholder is not a party to any agreement which is inconsistent with the rights of any party hereunder or otherwise conflicts with the provisions hereof; and (d) such Stockholder is an “accredited investor” as that term is defined in Rule 501 of Regulation D of the Securities Act.

6. Restrictions on Transfer; Transfers in Violation of Certificate. Each Stockholder hereby acknowledges and agrees that the Shares shall be subject to the restrictions on transfer set forth in the Certificate. Each Stockholder further acknowledges and agrees that (a) any Transfer or attempted Transfer of any Shares in violation of any provision of Certificate shall be null and void and of no force and effect; (b) the Company shall have no obligation to record such Transfer on its books or treat any purported Transferee of such Shares as the owner of such Shares for any purpose; and (c) the Company shall have the option to redeem, out of legally available funds, any Shares Transferred in violation of any provision of the Certificate, on such terms and subject to such conditions as determined by the Board.

7. Definitions.

“Affiliate” means, as to any specified Person, any other Person which, directly or indirectly, controls, is controlled by, employed by or is under common control with, any of the foregoing. For the purposes of this definition, “control” means the possession of the power to direct or cause the direction of the management and policies of such Person through the ownership of voting securities, by contract or otherwise. For purposes of this Agreement, the Company and any Person that is controlled by the Company shall not be considered Affiliates of the Yucaipa Stockholders or any Yucaipa Affiliated Company.

“Certificate” means the Company’s Amended Certificate of Incorporation, as the same may be amended from time to time.

“Common Stock” means the Company’s common stock, par value $0.01 per share and any other common equity securities issued by the Company, and any other shares of stock issued or issuable with respect thereto (whether by way of a stock dividend or stock split or in

exchange for or upon conversion of such shares or otherwise in connection with a combination of shares, recapitalization, merger, consolidation or other corporate reorganization).

“Company” means Allied Systems Holdings, Inc., a Delaware corporation and any successors thereto.

“Creditors Committee” means (i) the official committee of unsecured creditors of the Debtors appointed by the United States Trustee in the Chapter 11 case initiated by Allied Georgia’s filing on July 31, 2005 of a voluntary petition for relief in the Bankruptcy Court under chapter 11 of the Bankruptcy Code pursuant to Section 1102 of the Bankruptcy Code as its composition may be changed from time to time by addition, resignation or removal of its members or (ii) in the event that such committee is dissolved, the majority of the members comprising such committee at the time of its dissolution.

“Equipment Financing Facility” means that certain Loan and Security Agreement and Guaranty entered into among Allied Systems, Ltd. (L.P.), as borrower, Allied Georgia and certain of its subsidiaries, as guarantors, and Yucaipa Transportation, LLC, a Delaware limited liability company (“Yucaipa Transport”), as lender, to finance the purchase by Allied Systems of certain equipment from Yucaipa Transport, together with any instruments and agreements entered into in connection therewith.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.

“Nationally Recognized Exchange” means any of the following nationally recognized stock exchanges: the New York Stock Exchange, NASDAQ (any market thereof) or AMEX.

“New Securities” shall mean equity securities of the Company or any of its subsidiaries, whether now authorized or not, and rights, options or warrants to purchase any such equity securities, and any securities of any type whatsoever which are, or may become, convertible into such equity securities; provided, however, that the term “New Securities” does not include: (i) securities offered to the public pursuant to a registration statement filed by the Company or any Qualified Public Offering (and, in the case of rights, options or warrants, the securities issued or issuable upon exercise thereof and, if applicable, the Common Stock issued or issuable upon conversion of such securities); (ii) securities issued for the acquisition of another business by the Company by merger, purchase of substantially all the assets of such business or another reorganization resulting in the ownership by the Company of not less than a majority of the voting power of such business (and, in the case of rights, options or warrants, the securities issued or issuable upon exercise thereof and, if applicable, the Common Stock issued or issuable upon the conversion of such securities); (iii) securities issued to directors or employees of or consultants to the Company pursuant to an equity incentive plan, stock option plan, employee stock purchase plan, restricted stock plan or other employee stock plan or agreement or otherwise, in all cases approved by the Board (and, in the case of rights, options or warrants, the securities issued or issuable upon exercise thereof and, if applicable, the Common Stock issued or issuable upon the conversion of such securities); (iv) securities issued to a Person other than a Yucaipa Stockholder or a Yucaipa Affiliated Company in connection with an equipment lease, commercial loan, or research, development or licensing agreement or other similar business transaction, in all cases approved by the Board (and, in the case of rights, options or warrants, the securities issued or issuable upon exercise thereof and, if applicable, the Common Stock issued or issuable upon the conversion of such securities); (v) securities issued as a result of any stock split, stock dividend, reverse stock split, capital reorganization, recapitalization, or reclassification of Common Stock, distributable on a pro rata basis to all holders of Common Stock; (vi) Common Stock issued to any Yucaipa Stockholder or any other Person pursuant to the Plan; or (vii) securities issued upon the conversion of any outstanding indebtedness under the Equipment Financing Facility.

“Other Stockholder” means any Stockholder other than a Yucaipa Stockholder or a Stockholder that is a Yucaipa Affiliated Company.

“Permitted Transaction” means (i) any Affiliate Transaction (including, without limitation, the entrance into, performance under, or any amendment in accordance with the terms of any contract or agreement) specifically disclosed in the Plan or in the related Disclosure Statement or in any supplements to either document and approved by the Creditors Committee (other than the potential sale of Allied Systems (Canada) Company); (ii) the acquisition by the Yucaipa Stockholders or any Yucaipa Affiliated Companies of New Securities pursuant to the exercise of their subscription rights pursuant to Section 2 hereof; (iii) the acquisition of any securities issued as a result of any stock split, stock dividend, reverse stock split, capital reorganization, recapitalization, or reclassification of Common Stock, distributable on a pro rata basis to all holders of Common Stock; (iv) any payments, benefit or awards of securities made or provided pursuant to the terms of any employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into between the Company or any of its subsidiaries and any director, officer, employee, consultant or Board nominee of any Yucaipa Stockholder or Yucaipa Affiliated Company; (v) any Affiliate Transaction to the extent done in the ordinary course of business consistent with the past

practices of Allied Georgia or its subsidiaries; provided that the terms of such transaction are no less favorable in the aggregate to the Company or its relevant subsidiary than those that would have been obtained in a comparable transaction by the Company or such subsidiary with an unrelated Person; (vi) any payments made, actions taken or other Affiliate Transaction in accordance with the terms or contemplated by that certain Monitoring and Management Services Agreement, dated as of the Effective Date, between the Company and Yucaipa American Funds, LLC; (vii) any Affiliate Transaction involving any sharing or common use of real property or facilities with any Yucaipa Affiliated Companies done in the ordinary course of business consistent with the past practices of Allied Georgia or its subsidiaries; provided that the terms of such transaction are no less favorable in the aggregate to the Company or its relevant subsidiary than those that would have been obtained in a comparable transaction by the Company or such subsidiary with an unrelated Person; (viii) any Affiliate Transaction involving the subleasing, assignment or other arrangement with respect to hauling or transporting vehicles or fulfilling other customer requirements with any Yucaipa Affiliated Companies done in the ordinary course of business consistent with the past practices of Allied Georgia or its subsidiaries; provided that the terms of such transaction are no less favorable in the aggregate to the Company or its relevant subsidiary than those that would have been obtained in a comparable transaction by the Company or such subsidiary with an unrelated Person; (ix) any Affiliate Transaction with any Yucaipa Affiliated Company that (1) does not involve a merger, consolidation, sale, lease, license or other transfer of substantially all the properties of, or sale by the Company or any subsidiary of the Company, the sale of issuance of any debt or equity securities of the Company or such subsidiary or any form of debt or equity financing in favor of the Company or such subsidiary and (2) is on terms no less favorable in the aggregate to the Company or its relevant subsidiary than those that would have been obtained in a comparable transaction by the Company or such subsidiary with an unrelated Person; and (x) any Affiliate Transaction with any Yucaipa Stockholder or Yucaipa Affiliated Company that involves consideration to or from the Yucaipa Stockholders or Yucaipa Affiliated Company of less than $10,000,000 and, when taken with all other Affiliate Transactions permitted solely by this clause (x) involves aggregate consideration to or from the Yucaipa Stockholders or Yucaipa Affiliated Companies of less than $25,000,000 in any fiscal year (it being understood that consideration pursuant to any Affiliate Transactions permitted pursuant to any other clause of this definition or approved pursuant to the Certificate or Incorporation or any other provisions of this Agreement, will not be included when calculating the foregoing thresholds in this clause).

“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust (including any beneficiary thereof), a joint venture, an unincorporated organization or a governmental entity or any department, agency or political subdivision thereof.

“Preferred Stock” means the Company’s preferred stock, par value $0.01 per share, including any series thereof as may be designated by the Board from time to time.

“Qualified Public Offering” means a sale of equity securities of the Company in an underwritten public offering registered under the Securities Act, with gross proceeds of not less than $40,000,000, and resulting in the listing of such of the Company’s equity securities on a Nationally Recognized Exchange.

“Sale of the Company” means (i) any sale, transfer or issuance or series of sales, transfers or issuances of capital stock of the Company by the Company, the Yucaipa Stockholders or any other Stockholders (including, any merger, consolidation or other transaction or series of related transactions having the same effect) which results in any Person or group of Persons (as the term “group” is used under the Exchange Act), other than the Yucaipa Stockholders or any of their Affiliates, owning capital stock of the Company possessing in the aggregate a majority of the total voting power of the outstanding shares of capital stock of the Company and (ii) any sale or transfer of all or substantially all of the assets of the Company and its subsidiaries in any transaction or series of transactions (other than sales in the ordinary course of business) to any Person or group of Persons (as the term “group” is used under the Exchange Act).

“Securities Act” means the Securities Act of 1933, as amended from time to time.

“Shares” means, at any time, any shares of Common Stock, any other common equity securities issued by the Company, and any other shares of stock issued or issuable with respect thereto (whether by way of a stock dividend or stock split or in exchange for or upon conversion of such shares or otherwise in connection with a combination of shares, recapitalization, merger, consolidation or other corporate reorganization).

“Stockholders” means the Persons named on the signature pages to this Agreement and any other Person who is a Transferee of Shares, whether from another Stockholder or from the Company, that agrees to be bound by the terms of this Agreement. The term “Stockholder” means any one of the Stockholders and, in the case of a Stockholder who is a natural person, the term “Stockholder” also includes such Stockholder’s legal representatives, executors or administrators when the context so requires.

“Subscribing Other Stockholder” means any Person that (i) is an “accredited investor” as that term is defined in Rule 501 of Regulation D of the Securities Act, (ii) either (A) is a Stockholder that, on or after the Effective Date, was, pursuant to the Plan, issued shares of Common Stock representing five percent (5%) or more of the shares of Common Stock issued on the Effective Date or (B) is a Person that was assigned the subscription rights of an Other Stockholder pursuant to Section 8(c) hereof and (iii) as of the date immediately prior to the date of issue or sale of New Securities owns shares of Common Stock representing five percent (5%) or more of the issued and outstanding shares of Common Stock; provided, that any Other Stockholder shall immediately cease to be a “Subscribing Other Stockholder” upon any assignment pursuant to Section 8(c) to the extent that such assignment results in the assigning Other Stockholder beneficially owning shares of Common Stock representing less than five percent (5%) of the issued and outstanding shares of Common Stock.

“Supermajority” of the Common Stock shall mean a percentage equal to the percentage (as of the record date or other applicable date for any vote, consent or approval) of the outstanding Common Stock of the Company that is held or owned by the Yucaipa Stockholders and any Yucaipa Affiliated Company plus seven percent (7%). “Supermajority” of the capital stock shall mean, if the voting rights (on an as converted basis or otherwise) of any outstanding Preferred Stock owned or held by the Yucaipa Entities and their Affiliated Companies are not materially disproportionate to the voting rights of the Common Stock, a

percentage equal to the percentage (as of the record date or other applicable date for any vote, consent or approval) of the voting power of the outstanding capital stock of the Company (voting together as a single class) that is held or owned by the Yucaipa Stockholders and any Yucaipa Affiliated Company plus seven percent (7%).

“Transfer” means any transfer, donation, bequest, sale, assignment, or other disposal or attempted disposal (including by way of merger, operation of law, pursuant to any domestic relations or other court order, whether with or without consideration and whether voluntarily or involuntarily or by operation of law) of all or any portion of a security, any interest or rights in a security, or any rights under this Agreement. “Transferred” means the accomplishment of a Transfer, and “Transferee” means the recipient of a Transfer.

“Yucaipa Affiliated Company” means any entity which is controlled by the Yucaipa Stockholders, controls the Yucaipa Stockholders or is under common control with the Yucaipa Stockholders (other than the Company and any Person that is controlled by the Company). For the purposes of this definition, “control” means the possession of the power to direct or cause the direction of the management and policies of such Person through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, for so long as the Yucaipa Stockholders own, directly or indirectly, more than fifty percent (50%) of the capital stock of Performance Logistics Group, Inc., a Delaware corporation, such corporation shall be considered a “Yucaipa Affiliated Company.”

8. Miscellaneous.

(a) Amendment and Waiver. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement will be effective against the Company or the holders of Shares unless such modification, amendment or waiver is agreed to, consented to or approved by (i) the Company, (ii) the Yucaipa Stockholders and (iii) the holders of either a Supermajority of the Common Stock or a Supermajority of the capital stock of the Company; provided, however, that no modification, amendment or waiver of the terms of Section 2 of this Agreement will be effective against any Other Stockholder unless such amendment, modification or waiver is approved in writing by such Other Stockholder. Notwithstanding the foregoing, if an amendment or modification of this Agreement is not adverse to the material rights of Other Stockholders under this Agreement, then such amendment or modification will be effective against the Company and the holders of Shares if such amendment or modification is approved in writing by the Company and the Yucaipa Stockholders. The failure of any party to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

(b) Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

(c) Successors and Assigns. This Agreement and all rights and obligations of the Yucaipa Stockholders hereunder may be Transferred by any Yucaipa Stockholder without the consent of any party hereto upon written notice to the Company thereof. Neither this Agreement nor any of the rights or obligations under this Agreement may be Transferred by any Other Stockholder without the prior written consent of the Company and the Yucaipa Stockholders; provided, however, that in the event that (i) any Other Stockholder proposes to assign its subscription rights under Section 2 in connection with the Transfer of (A) all Shares held by such Other Stockholder or (B) a number of Shares equal to not less than five percent (5%) of the number of issued and outstanding shares of Common Stock at such time and (ii) the Transferee of such Shares will acquire beneficial ownership of Shares representing not less than five percent (5%) of the issued and outstanding shares of Common Stock at such time, then such Other Stockholder may assign his, her or its subscription rights under Section 2 (and not any other rights hereunder) with the prior written consent of only the Yucaipa Stockholders, which consent the Yucaipa Stockholders shall not unreasonably withhold, delay or condition (but which may be conditioned upon such Transferee executing a joinder to this Agreement (substantially similar the Joinder attached as Exhibit A but solely with respect to the provisions applicable to subscription rights under Section 2) or a separate subscription rights agreement (having substantially the same terms as those set forth in Section 2), in each case, satisfactory to the Yucaipa Stockholders). Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and any Person that may become a party to this Agreement by executing the Joinder attached as Exhibit A.

(d) Counterparts. This Agreement may be executed in separate counterparts each of which will be an original and all of which taken together shall constitute one and the same agreement.

(e) Remedies. Any Person having rights under any provision of this Agreement shall be entitled to enforce their rights under this Agreement specifically to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any Stockholder may in its sole discretion apply to any court of competent jurisdiction for specific performance and/or injunctive relief (without posting a bond or other security) in order to enforce or prevent any violation of the provisions of this Agreement.

(f) Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent by first class mail (postage prepaid and return receipt requested), or sent by reputable overnight courier service (charges prepaid) or by facsimile to the Company at the address set forth below and to the Stockholders at their respective addresses indicated in the Company’s records, or at such address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder when delivered personally, three days after deposit in the U.S. mail, and one day after deposit with a reputable overnight courier service. Notices given by facsimile will be deemed given when sent and confirmed electronically. The address of the Company is:

Allied Systems Holdings, Inc.
160 Clairemont Avenue, Suite 200
Decatur, Georgia 30030
Fax: (404) 370-4206
Attn: General Counsel

(g) Governing Law; Consent to Jurisdiction and Service of Process; Jury Waiver.

(i) The corporate law of the State of Delaware shall govern all issues and questions concerning the relative rights and obligations of the Company and its stockholders. All other issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

(ii) Each party hereby (1) irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Wilmington, Delaware for the purpose of any action, claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or investigation arising out of or based upon this Agreement or relating to the subject matter hereof, (2) waives to the extent not prohibited by applicable law, and agrees not to assert by way of motion, as a defense or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that any such proceeding brought in one of the above-named courts is improper, or that this Agreement or the subject matter hereof or thereof may not be enforced in or by such court and (3) agrees not to commence or maintain any action, claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or investigation arising out of or based upon this Agreement or relating to the subject matter hereof or thereof other than before one of the above-named courts nor to make any motion or take any other action seeking or intending to cause the transfer or removal of any such action, claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or

investigation to any court other than one of the above-named courts whether on the grounds of inconvenient forum or otherwise. Each party hereto hereby consents to service of process in any such proceeding in any manner permitted by Delaware law, and agrees that service of process by registered or certified mail, return receipt requested, at its address specified pursuant to Section 8(f) hereof is reasonably calculated to give actual notice.

(iii) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HEREBY WAIVES, AND COVENANTS THAT SUCH PARTY WILL NOT ASSERT, ANY RIGHT TO TRIAL BY JURY ON ANY ISSUE IN ANY PROCEEDING, WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE, IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH, RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HEREUNDER, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN TORT OR CONTRACT OR OTHERWISE.

(h) No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any party.

(i) Business Days. If any time period for giving notice or taking action hereunder expires on a day which is a Saturday, Sunday or legal holiday in the state in which the Company’s chief executive office is located, the time period shall automatically be extended to the business day immediately following such Saturday, Sunday or legal holiday.

(j) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. For all purposes of and under this Agreement, (i) the word “including” shall be deemed to be immediately followed by the words “without limitation”; (ii) words (including defined terms) in the singular shall be deemed to include the plural and vice versa; (iii) words of one gender shall be deemed to include the other gender as the context requires; (iv) “or” is not exclusive; and (v) the terms “hereof,” “herein,” “hereto,” “herewith” and any other words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including the Exhibit hereto) and not to any particular term or provision of this Agreement, unless otherwise specified.

(k) Entire Agreement. This Agreement, including the Exhibit hereto, constitutes the entire agreement and understanding among the parties with respect to the matters set forth herein and supersedes all other prior covenants, agreements, undertakings, obligations, promises, arrangements, communications, representations and warranties, whether oral or written, by any party hereto or by any Affiliate or representative of any party hereto with respect to the matters set forth herein. There are no covenants, agreements, undertakings or obligations with respect to the matters set forth in this Agreement other than those expressly set forth or referred to herein.

(l) No Agency Relationship. Nothing contained in this Agreement shall be construed as creating a partnership, agency or joint venture relationship between the Company and any Stockholder, and no party hereto shall become bound by any representation, act or omission by the other party.

* * * * *

IN WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement on the day and year first above written.


		COMPANY

		By:

		Name:

		Its:

Stockholders’ Agreement

S-1


		THE YUCAIPA STOCKHOLDERS

		Yucaipa American Alliance Fund I, LP, a Delaware limited partnership

		By:

		Name:

		Its:


		Yucaipa American Alliance (Parallel) Fund I, LP, a Delaware limited partnership

		By:

		Name:

		Its:

Stockholders’ Agreement

S-2


		OTHER STOCKHOLDERS:

		By:

		Name:

		Its:

Stockholders’ Agreement

S-3

EXHIBIT A

STOCKHOLDERS AGREEMENT

Joinder

The undersigned is executing and delivering this Joinder pursuant to the Stockholders Agreement dated , 2007 (as the same may hereafter be amended, the “Stockholders Agreement”), among Allied Systems Holdings, Inc., a Delaware corporation (the “Company”) and the other persons named as parties therein.

By executing and delivering this Joinder to the Company, the undersigned hereby agrees to become a party to, to be bound by, and to comply with the provisions of the Stockholders Agreement as a holder of Shares in the same manner as if the undersigned were an original signatory to the Stockholders Agreement, and the undersigned’s ___ shares of Common Stock shall be included as Shares under the Stockholders Agreement.

Accordingly, the undersigned has executed and delivered this Joinder as of the ___ day of , .



		Signature of Stockholder


		Print Name of Stockholder

EX-4.2 5 g07653exv4w2.htm EX-4.2 FORM OF REGISTRATION RIGHTS AGREEMENT EX-4.2 FORM OF REGISTRATION RIGHTS AGREEMENT

Exhibit 4.2

REGISTRATION RIGHTS AGREEMENT

by and among

ALLIED SYSTEMS HOLDINGS, INC.

and

The Stockholders of Allied Systems Holdings, Inc.

set forth on the Signature Pages Hereto

Dated as of , 2007

TABLE OF CONTENTS


1.	Demand Registrations	1

2.	Piggyback Registrations	3

3.	Other Registrations; Registration Rights	5

4.	Holdback Agreements	5

5.	Registration Procedures	6

6.	Registration Expenses	9

7.	Indemnification	9

8.	Participation in Underwritten Registrations	12

9.	Definitions	13

10.	Company Representations	14

11.	Miscellaneous	14

REGISTRATION RIGHTS AGREEMENT

THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of , 2007, by and among Allied Systems Holdings, Inc., a Delaware corporation (the “Company”), Yucaipa American Alliance Fund I, LP, a Delaware limited partnership (“YAAF”), Yucaipa American Alliance (Parallel) Fund I, LP, a Delaware limited partnership (“YAAF Parallel”) and, together with YAAF, the (“Yucaipa Stockholders”) and each of the other stockholders of the Company named on the signature pages hereto or who otherwise hereafter becomes a party to this Agreement by executing the Joinder attached as Exhibit A (the “Other Stockholders” and, together with the Yucaipa Stockholders, the “Stockholders”). Otherwise undefined capitalized terms used herein are defined in Section 9 hereof.

WHEREAS, Allied Holdings, Inc., a Georgia corporation (“Allied Georgia”), filed a plan of reorganization (the “Plan”) under Chapter 11 of the United States Code before the United States Bankruptcy Court for the Northern District of Georgia to effect a final restructuring of Allied Georgia;

WHEREAS, on , 2007 (the “Effective Date”) the Plan became effective;

WHEREAS, pursuant to the Plan, the Stockholders have executed this Agreement to govern certain rights of the Stockholders and to provide certain other rights and obligations among them;

1. Demand Registrations.

(a) Generally. The Stockholders shall be entitled to request registration under the Securities Act of all or any portion of their Registrable Securities on Form S-1 or any similar long-form registration (“Long-Form Registrations”) or, if available, on Form S-3 or any similar short-form registration (“Short-Form Registrations”), in each case, in accordance with the provisions set forth in subparagraphs (b) and (c) below. All registrations requested pursuant to this Section 1 are referred to herein as “Demand Registrations.” All Long-Form Registrations and, unless otherwise agreed to by the Company, all Short-Form Registrations shall be underwritten registrations. Demand Registrations will be Short-Form Registrations whenever the Company is permitted to use any applicable short form. So long as the Company is subject to the reporting requirements of the Exchange Act, the Company shall use its reasonable best efforts to make Short-Form Registrations on Form S-3 available for the sale of Registrable Securities. Notwithstanding the foregoing, the Stockholders hereby acknowledge and agree that, as of the Effective Date, the Company is not eligible to register its securities on Form S-3.

(b) Demand Registrations by the Yucaipa Stockholders. The Yucaipa Stockholders shall be entitled to request unlimited Demand Registrations at any time.

(c) Demand Registrations by the Other Stockholders. At any time during the period (i) commencing upon the earlier to occur of (1) the date that is 180 days following the date of the Company’s initial Qualified Public Offering following the Effective Date and (2) the date of the listing of the Common Stock on a Nationally Recognized Exchange and (ii) ending upon the fifth anniversary of the Effective Date (except as otherwise provided in Section 1(f) hereof), the Other Stockholders holding Registrable Securities shall be entitled to request an aggregate of two Demand Registrations; provided, however, that such holders of Other Stockholder Registrable Securities (x) shall be entitled to request Long-Form Registrations only in connection with a registration in which the aggregate offering value of the Other Stockholder Registrable Securities requested to be registered equals at least $40,000,000 and (y) shall be entitled to request Short-Form Registrations only in connection with a registration in which the aggregate offering value of the Other Stockholder Registrable Securities requested to be registered equals at least $20,000,000. For purposes of this Agreement, a “Qualified Public Offering” is an underwritten public offering registered with the Securities Act of the Common Stock made by the Company or a Yucaipa Stockholder, with aggregate gross proceeds of not less than $40,000,000. The demand registration rights of all Other Stockholders shall terminate on the fifth anniversary of the Effective Date.

(d) Requests for Registration. Each request for a Demand Registration shall specify the approximate number of Yucaipa Registrable Securities or Other Stockholder Registrable Securities, as applicable, requested to be registered and the anticipated per share price range for such offering. Within 10 days after receipt of any such request, the Company shall give written notice of such requested registration to all holders of Registrable Securities and, subject to Section 1(e) below, will include in such registration, in addition to the Yucaipa Registrable Securities or Other Stockholder Registrable Securities, as applicable, that are requested to be registered pursuant hereto, all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the receipt of the Company’s notice.

(e) Priority on Demand Registrations. The Company will not include in any Demand Registration any securities other than Registrable Securities without the prior written consent of the Yucaipa Stockholders. In connection with any Demand Registration that is an underwritten offering, if (i) the Company has requested to include in such registration any equity securities of the Company (the “Company Equity Securities”) to be sold for the account of the Company, (ii) the managing underwriter(s) advise the Company and the Yucaipa Stockholders that in their opinion the inclusion of such Registrable Securities and Company Equity Securities proposed to be included in such offering will not adversely affect the ability of the underwriter(s) to sell such Registrable Securities and such Company Equity Securities in an orderly manner in such offering within a price range acceptable to the Yucaipa Stockholders and the holders of a majority of the Registrable Securities initially requesting registration, and (iii) the Yucaipa Stockholders consent in writing to the inclusion of such Company Equity Securities in such offering, then the Company may include such Company Equity Securities in such offering. Notwithstanding the foregoing, if a Demand Registration is an underwritten offering and the managing underwriter(s) advise the Company in writing that, in their opinion, the number of

Registrable Securities and, if permitted hereunder, other securities requested to be included in such offering, exceeds the number of Registrable Securities and other securities, if any, which can be sold therein without adversely affecting the marketability of the offering, the Company will include in such registration (x) first, the number of Registrable Securities requested to be included in such registration which in the opinion of such underwriter(s) can be sold without adverse effect, pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder, (y) second, the Company Equity Securities and (z) third, other securities requested to be included in such Demand Registration, pro rata among the holders of such securities on the basis of the number of such securities owned by each such holder.

(f) Restrictions on Demand Registrations. The Company will not be obligated to effect any Demand Registration within six months after the effective date of a previous Long-Form Registration with respect to the Company. The Company may postpone, for up to six months (from the date of the request), the filing or the effectiveness of a registration statement for a Demand Registration if the Company’s board of directors believes that such Demand Registration would reasonably be expected to have an adverse effect on any proposal or plan by the Company or any subsidiary thereof to engage in any acquisition of assets (other than in the ordinary course of business) or any stock purchase, merger, consolidation, tender offer, reorganization, or similar transaction; provided, however, that in such event, the holders of Registrable Securities initially requesting such Demand Registration will be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration shall be treated as if it had never been made in the first instance, and the Company will pay all Registration Expenses in connection with such registration; provided, further, that the duration of the rights of the Other Stockholders to require Demand Registrations pursuant to this Section 1 and to participate in Piggyback Registrations pursuant to Section 2 hereof shall be extended by the period of any such postponement. The Company may delay a Demand Registration hereunder only once in any 12-month period.

(g) Selection of Underwriters. The holders of a majority of the Registrable Securities initially requesting each Demand Registration hereunder will have the right to select the investment banker(s) and manager(s) to administer the offering under such Demand Registration, subject to the approval of the Yucaipa Stockholders and the Company, which, in each case, will not be unreasonably withheld.

2. Piggyback Registrations.

(a) Right to Piggyback. Whenever the Company proposes to register any of its equity securities under the Securities Act (other than pursuant to (i) a Demand Registration which is addressed in Section 1 above rather than in this Section 2, (ii) a registration on Form S-4 or S-8 or any successor or similar forms or (iii) in connection with the Company’s initial Qualified Public Offering) and the registration form to be used may be used for the registration of Registrable Securities (a “Piggyback Registration”), whether for sale for its own account or the account of a Person not a party to this Agreement, the Company will give prompt written notice to all holders of Registrable Securities of its intention to effect such a registration and, subject to Sections 2(c) and 2(d) below, will include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein

within 15 days after the receipt of the Company’s notice. All Piggyback Registration rights of any Other Stockholder shall terminate on the fifth anniversary of the Effective Date (except as otherwise provided in Section 1(f) hereof).

(b) Priority on Primary Registrations. If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriter(s) advise the Company in writing (with a copy to each party hereto requesting registration of Registrable Securities) that, in their opinion, the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of such offering, the Company will include in such registration (i) first, the securities that the Company proposes to sell, (ii) second, the Registrable Securities requested to be included in such registration, pro rata among the holders thereof on the basis of the number of Registrable Securities owned by each such holder, and (iii) third, other securities requested to be included in such registration pro rata among the holders of such securities on the basis of the number of such other securities owned by each such holder.

(c) Priority on Secondary Registrations. If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company’s securities (it being understood that secondary registrations on behalf of holders of Registrable Securities are addressed in Section 1 above rather than in this Section 2(c)), and the managing underwriter(s) advise the Company in writing that, in their opinion, the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities requested to be included in such registration, pro rata among the holders of such Registrable Securities on the basis of the number of Registrable Securities owned by each such requesting holder, and (iii) third, other securities requested to be included in such registration pro rata among the holders of such other securities on the basis of the number of such securities owned by each such holder.

(d) Selection of Underwriters. If any Piggyback Registration is an underwritten offering, the selection of the investment banker(s) and manager(s) for the offering must be approved by the Yucaipa Stockholders and the holders of a majority of the Registrable Securities included in such Piggyback Registration, in each case, which approval shall not be unreasonably withheld.

(e) Withdrawal by Company. If, at any time after giving notice of its intention to register any of its securities as set forth in Section 2(a) and before the effective date of such registration statement filed in connection with such registration, the Company shall determine, for any reason, not to register such securities, the Company may, at its sole discretion, give written notice of such determination to each holder of Registrable Securities and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein).

3. Other Registrations; Registration Rights.

(a) If the Company has previously filed a registration statement with respect to Registrable Securities pursuant to Sections 1 or 2, and if such previous registration has not been withdrawn or abandoned, the Company will not file or cause to be effected any other registration of any of its equity securities or securities convertible into or exchangeable or exercisable for its equity securities under the Securities Act (except on Form S-4 or S-8 or any successor form), whether on its own behalf or at the request of any holder or holders of such securities, until a period of at least six months has elapsed from the effective date of such previous registration.

(b) The Company will not grant to any Persons the right to request that the Company register any equity securities of the Company, or any securities convertible into or exchangeable or exercisable for any such securities, without the prior written consent of the Yucaipa Stockholders.

4. Holdback Agreements.

(a) Unless the managing underwriter in an underwritten public offering of the Company’s equity securities otherwise agrees, each holder of Registrable Securities agrees not to offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any equity securities of the Company, or any securities convertible into or exchangeable or exercisable for such securities, enter into a transaction which would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of such securities, whether any such aforementioned transaction is to be settled by delivery of such securities or other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such transaction, swap, hedge or other arrangement, in each case during the 10 days before and the 180-day period beginning on the effective date of any underwritten public offering of the Company’s equity securities (including Demand and Piggyback Registrations) (the “Market Standoff Period”), except as part of such underwritten registration if otherwise permitted. In addition, each holder of Registrable Securities agrees to execute any further letters, agreements and/or other documents requested by the Company or its underwriters which are consistent with the terms of this Section 4(a). The Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such Market Standoff Period.

(b) The Company agrees (i) not to effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the 10 days before and during the 180-day period beginning on the effective date of any underwritten public offering of the Company’s equity securities (including Demand and Piggyback Registrations) (except as part of such underwritten registration, pursuant to registrations on Form S-4 or S-8 or any successor form, pursuant to the terms of any employee benefit plan or similar arrangement applicable to the Company’s or its subsidiaries’ directors, officers or employees, unless the underwriter(s) managing the registered public offering otherwise agree, and (ii) to use its reasonable best efforts to cause each holder of its Common Stock, or any securities convertible into or exchangeable or exercisable for Common Stock, purchased or otherwise acquired from the Company at any time after the date of this Agreement

(other than in a registered public offering) to agree not to effect any public sale or distribution (including sales pursuant to Rule 144) of any such securities during any such period (except as part of such underwritten registration, if otherwise permitted or pursuant to any pre-existing selling plan pursuant to Rule 10b5-1 established or maintained for the benefit of any officer or director of the Company or any of its subsidiaries and over which such individual exercises no discretion), unless the underwriter(s) managing the registered public offering otherwise agree.

5. Registration Procedures. Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the Company will as expeditiously as possible:

(a) prepare and (within 60 days after the end of the period within which requests for registration may be given to the Company) file with the Securities and Exchange Commission a registration statement with respect to such Registrable Securities and thereafter use its reasonable best efforts to cause such registration statement to become effective as soon as practicable but no later than 120 days after the applicable request date (provided that, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the holders of a majority of the Registrable Securities covered by such registration statement copies of all such documents proposed to be filed, which documents will be subject to review of such counsel);

(b) prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of either (i) not less than six months (subject to extension pursuant to Section 8(b)) or, if such registration statement relates to an underwritten offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer, or (ii) such shorter period as will terminate when all of the securities covered by such registration statement during such period have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement (but, in any event, not before the expiration of any longer period required under the Securities Act), and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement;

(c) furnish to each seller of Registrable Securities such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;

(d) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction);

(e) promptly notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, at the request of any such seller, prepare and furnish to such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made;

(f) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if not so listed, to be quoted on the quotation system on which similar securities issued by the Company are then listed or quoted (or if the securities of the Company are not yet listed or quoted, then on such exchange or quotation system as the Yucaipa Stockholders and the Company determine);

(g) provide a transfer agent and registrar and a CUSIP number for all such Registrable Securities not later than the effective date of such registration statement;

(h) enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;

(i) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant, or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Company, and cause the Company’s officers, directors, employees, agents, representatives, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent in connection with such registration statement;

(j) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months, beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

(k) permit any holder of Registrable Securities which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a controlling person of the Company to participate in the preparation of such registration or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such holder and its counsel should be included;

(l) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any securities included in such registration statement for sale in any jurisdiction, the Company will use its reasonable best efforts promptly to obtain the withdrawal of such order;

(m) use its reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;

(n) obtain a cold comfort letter from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters, which letter shall be addressed to the underwriters, and the Company shall use its reasonable best efforts to cause such cold comfort letter to also be addressed to the holders of such Registrable Securities;

(o) use its reasonable best efforts to cause certificates for the Registrable Securities covered by such registration statement to be delivered by the holders thereof to the underwriters in such denominations and registered in such names as the underwriters may request;

(p) obtain an opinion from the Company’s outside counsel in customary form and covering such matters of the type customarily covered by such opinions, which opinion shall be addressed to the underwriters and the holders of such Registrable Securities; and

(q) cause the Company’s management to participate fully in the sale process, including, without limitation, the preparation of the registration statement and the preparation and presentation of any “road shows,” whether domestic or international.

If any such registration or comparable statement refers to any holder by name or otherwise as the holder of any securities of the Company and if such holder, in its sole and exclusive judgment, is or might be deemed to be an underwriter or a controlling person of the Company, such holder shall have the right to require (i) the insertion therein of language, in form and substance satisfactory to such holder and presented to the Company in writing, to the effect

that the holding by such holder of such securities is not to be construed as a recommendation by such holder of the investment quality of the Company’s securities covered thereby, and that such holding does not imply that such holder shall assist in meeting any future financial requirements of the Company, or (ii) in the event that such reference to such holder by name or otherwise is not required by the Securities Act or any similar federal or state statute then in force, the deletion of the reference to such holder; provided that, with respect to this clause (ii), such holder shall furnish to the Company an opinion of counsel to such effect, which opinion and counsel shall be reasonably satisfactory to the Company. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish the Company with such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing.

6. Registration Expenses.

(a) All expenses incident to the Company’s performance of or compliance with this Agreement or incurred by the holders of Registrable Securities in effecting any registration pursuant to Sections 1 or 2, including, without limitation, all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, the expense of any annual audit or quarterly review, the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed (or, if none are so listed, on a securities exchange or quotation system), fees and disbursements of custodians, fees and disbursements of counsel for the Company and of a single counsel for the holders of Registrable Securities participating in such registration as a group (selected, in the case of registration pursuant to Section 1, by the holders of a majority of the Registrable Securities who initiate such Demand Registration, and, in the case of a registration pursuant to Section 2, by the holders of a majority of the Registrable Securities participating in such registration), fees and disbursements of all independent certified public accountants, underwriters (excluding discounts and commissions), and other Persons retained by the Company (all such expenses being herein called “Registration Expenses”), will be paid by the Company, whether or not the registration statement to which such Registration Expenses relate becomes effective.

(b) Except as otherwise set forth in Section 6(a), the fees and disbursements of counsel and other advisors of any holder of Registrable Securities shall be borne by such holder, and each holder of any registration hereunder will pay any underwriting discounts and commissions allocable to the registration of such holder’s Registrable Securities so included.

7. Indemnification.

(a) The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, each holder of Registrable Securities, such holder’s officers, directors, agents, partners, members, stockholders, employees, Affiliates and each Person who controls such Holder (within the meaning of the Security Act) (each an “Indemnitee” and, collectively, the “Indemnities”) against any and all losses, claims, damages, liabilities, joint or several, together with reasonable costs and expenses (including reasonable attorney’s fees), to which such indemnified party may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, or liabilities (or actions or proceedings, whether commenced or

threatened, in respect thereof) arise out of, are based upon, are caused by, or result from (i) any untrue or alleged untrue statement of material fact contained (A) in any registration statement, prospectus, or preliminary prospectus or any amendment thereof or supplement thereto, or (B) in any application or other document or communication (in this Section 7 collectively called an “application”) executed by or on behalf of the Company or based upon written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify any securities covered by such registration statement under the “blue sky” or securities laws thereof, or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will reimburse such holder and each Indemnitee for any legal or any other expenses incurred by them in connection with investigating or defending any such loss, claim, liability, action, or proceeding; provided, however, that the Company shall not be liable in any such case to any such Person to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof), or expense arises out of, is based upon, is caused by, or results from an untrue statement or alleged untrue statement, or omission or alleged omission, made in such registration statement, any such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any application, in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Person expressly for use therein or by such Person’s failure to deliver, if such Person is required by law to deliver, a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished such Person with a sufficient number of copies of the same. In connection with any underwritten offering, the Company will indemnify such underwriters, their officers and directors, and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the holders of Registrable Securities.

(b) In connection with any registration statement in which a holder of Registrable Securities is participating, each such holder will furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the fullest extent permitted by law, will indemnify and hold harmless the other holders of Registrable Securities and the Company, and their respective directors, officers, agents, and employees and each other Person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities, together with reasonable costs and expenses (including reasonable attorney’s fees), to which such indemnified party may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of, are based upon, are caused by, or result from (i) any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or in any application, or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is made in such registration statement, any such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any application, in reliance upon and in conformity with written information prepared and furnished to the Company by such holder expressly for use therein; provided, however, that the obligation to indemnify will be individual, not joint and several, to each holder and will be limited to the net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to such registration statement.

(c) Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party), and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim.

(d) The indemnifying party shall not, except with the prior written consent of each indemnified party, consent to entry of any judgment or enter into any settlement unless (i) such judgment or settlement requires only the payment of money damages; (ii) such judgment or settlement includes, as an unconditional term thereof, the giving by the claimant or plaintiff to each indemnified party of a release from all liability in respect to such claim or litigation; and (iii) all amounts paid or payable with respect to such judgment or settlement are paid or to be paid by the indemnifying party.

(e) If the indemnification provided for in this Section 7 is unavailable to, or is insufficient to hold harmless, an indemnified party under the provisions above in respect to any losses, claims, damages, or liabilities referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand from the sale of Registrable Securities pursuant to the registered offering of securities as to which indemnity is sought, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand in connection with the registration statement on the other in connection with the statement or omissions which resulted in such losses, claims, damages, or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) to the Company bear to the total net proceeds from the offering (before deducting expenses) to the sellers of Registrable Securities and any other sellers participating in the registration statement. The relative fault of the Company on the one hand and of the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand shall be determined by reference to, among other things, whether the untrue or alleged omission to state a material fact relates to

information supplied by the Company or by the sellers of Registrable Securities or other sellers participating in the registration statement and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission.

(f) The Company and the sellers of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the sellers of Registrable Securities were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7, no seller of Registrable Securities shall be required to contribute any amount in excess of the net proceeds received by such seller from the sale of Registrable Securities covered by the registration statement filed pursuant hereto. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

(g) The indemnification and contribution by any such party provided for under this Agreement shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and will remain in full force and effect regardless of any investigation made or omitted by or on behalf of the indemnified party or any officer, director, Affiliate or controlling Person of such indemnified party and will survive the transfer of securities.

8. Participation in Underwritten Registrations.

(a) No Person may participate in any registration hereunder which is underwritten unless such Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements (including, without limitation, pursuant to the terms of any over-allotment or “green shoe” option requested by the managing underwriter(s); provided that no holder of Registrable Securities will be required to sell more than the number of Registrable Securities that such holder has requested the Company to include in any registration), and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, and other documents reasonably required under the terms of such underwriting arrangements.

(b) Each Person that is participating in any registration hereunder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(e) above, such Person will forthwith discontinue the disposition of its Registrable Securities pursuant to the registration statement until such Person’s receipt of the copies of a supplemented or amended prospectus as contemplated by such Section 5(e). In the event that the Company shall give any such notice, the applicable time period mentioned in Section 5(b) during which a Registration Statement is to remain effective shall be extended by the number of days during the period from and including the date of the giving of such notice

pursuant to this Section 8 to and including the date when each seller of a Registrable Security covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(e).

9. Definitions.

“Common Stock” means the Company’s common stock, par value $0.01 per share.

“Exchange Act” means the Exchange Act of 1934, as amended, or any similar federal law then in force.

“Nationally Recognized Exchange” means any of the following nationally recognized stock exchanges: the New York Stock Exchange, NASDAQ or AMEX.

“Other Stockholder Registrable Securities” means (i) all shares of Common Stock beneficially owned by the Other Stockholders and (ii) all shares of Common Stock issued or issuable, directly or indirectly, with respect to the securities referred to in clause (i) above upon exercise, conversion, or exchange or by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, or other reorganization.

“Person” means an individual, a partnership, a joint venture, an association, a joint stock company, a corporation, a limited liability company, a trust (including any beneficiary thereof), an unincorporated organization, and a governmental entity or any department, agency, or political subdivision thereof.

“Registrable Securities” means, collectively, the Yucaipa Registrable Securities and the Other Stockholder Registrable Securities.

“Securities Act” means the Securities Act of 1933, as amended, or any similar federal law then in force.

“Securities and Exchange Commission” includes any governmental body or agency succeeding to the functions thereof.

“Stockholders Agreement” means that certain Stockholders Agreement, dated as of the date hereof, among the Company, the Stockholders and the other stockholders of the Company who are parties thereto.

“Yucaipa Registrable Securities” means (i) all shares of Common Stock held by the Yucaipa Stockholders or any Yucaipa Affiliated Company and (ii) all shares of Common Stock issued or issuable, directly or indirectly, with respect to the securities referred to in clause (i) above upon exercise, conversion, or exchange or by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, or other reorganization.

10. Company Representations. The Company represents and warrants to each holder of Registrable Securities that this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by the Company does not and will not conflict with, violate or cause a breach of any agreement, contract or instrument to which the Company is a party or any judgment, order or decree to which the Company is subject.

11. Miscellaneous.

(a) Acknowledgment of the Other Stockholders; Termination of Other Stockholder Rights. Each Other Stockholder acknowledges and agrees that, notwithstanding the registration of the Common Stock under the Exchange Act as of the Effective Date, nothing set forth in this Agreement shall prevent the Company or the Yucaipa Stockholders from (i) filing, or causing to be filed, a Form 15 deregistering the Common Stock under the Exchange Act at any time or (ii) enforcing the restrictions on transfer set forth in the Company’s Amended Certificate of Incorporation, as the same may be amended from time to time. Each Other Stockholder acknowledges and agrees that all of their rights and privileges under this Agreement shall terminate, and the Company shall no longer have any obligation of any kind to any Other Stockholder pursuant to this Agreement, on the first to occur of (i) the consummation of a Sale of the Company (as defined in the Stockholders Agreement) or (ii) the fifth anniversary of the Effective Date (except as otherwise provided in Section 1(f) hereof). The Company and the Yucaipa Stockholders acknowledge and agree that all obligations of the Other Stockholders (including their obligations under Section 4(a) hereof) shall terminate and be of no further force and effect upon the termination of the Other Stockholders’ rights and privileges under this Agreement pursuant to the terms of the preceding sentence or otherwise.

(b) Amendment and Waiver. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective against the Company or the holders of Registrable Securities unless such modification, amendment or waiver is agreed to in writing by (i) the Company, the Yucaipa Stockholders and (iii) the holders of a majority of the outstanding Other Stockholder Registrable Securities. Notwithstanding the foregoing, if an amendment or modification of this Agreement is not adverse to the material rights of Other Stockholders under this Agreement then such amendment or modification will be effective against the Company and the holders of Other Stockholder Registrable Securities if such amendment or modification is approved in writing by the Company and the Yucaipa Stockholders. The failure of any party to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

(c) Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be construed and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provision had never been contained herein.

(d) Entire Agreement. This Agreement constitutes the entire agreement and understanding among the parties with respect to the matters set forth herein and supersedes all other prior covenants, agreements, undertakings, obligations, promises, arrangements, communications, representations and warranties, whether oral or written, by any party hereto or by any Affiliate or representative of any party hereto with respect to the matters set forth herein. There are no covenants, agreements, undertakings or obligations with respect to the matters set forth in this Agreement other than those expressly set forth or referred to herein.

(e) Successors and Assigns. This Agreement and all rights and obligations of the Yucaipa Stockholders hereunder may be Transferred by any Yucaipa Stockholder without the consent of any party hereto upon written notice to the Company thereof. Neither this Agreement nor any of the rights or obligations under this Agreement may be Transferred by any Other Stockholder without the prior written consent of the Company and the Yucaipa Stockholders; provided, however, that in the event that (i) any Other Stockholder proposes to assign its rights and obligations hereunder in connection with the Transfer of (A) all Other Stockholder Registrable Securities held by such Other Stockholder or (B) a number of Registrable Securities equal to not less than five percent (5%) of the number of issued and outstanding shares of Common Stock at such time and (ii) the Transferee of such Other Stockholder Registrable Securities will acquire beneficial ownership of Registrable Securities representing not less than five percent (5%) of the issued and outstanding shares of Common Stock at such time, then such Other Stockholder may assign his, her or its rights and obligations hereunder with the prior written consent of only the Yucaipa Stockholders, which consent the Yucaipa Stockholders shall not unreasonably withhold, delay or condition (but which may be conditioned upon such Transferee executing a joinder to this Agreement satisfactory to the Yucaipa Stockholders). Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.

(f) Counterparts. This Agreement may be executed in separate counterparts each of which will be an original and all of which taken together shall constitute one and the same agreement.

(g) Remedies. Any Person having rights under any provision of this Agreement shall be entitled to enforce their rights under this Agreement specifically to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any Stockholder may in its sole discretion apply to any court of competent jurisdiction for specific performance and/or injunctive relief (without posting a bond or other security) in order to enforce or prevent any violation of the provisions of this Agreement.

(h) Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent by first class mail (postage prepaid and return receipt requested), or sent by reputable overnight courier service (charges prepaid) or by facsimile to the Company at the address set forth below and to the Stockholders at their respective addresses indicated in the Company’s records, or at such address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder when delivered personally, three days after deposit in the U.S. mail, and one day after deposit with a reputable overnight courier service. Notices given by facsimile will be deemed given when sent and confirmed electronically. The address of the Company is:

Allied Systems Holdings, Inc.
160 Clairemont Avenue, Suite 200
Decatur, Georgia 30030
Fax: (404) 370-4206
Attn: General Counsel

(i) Governing Law. The corporate law of the State of Delaware shall govern all issues and questions concerning the relative rights and obligations of the Company and its stockholders. All other issues and questions concerning the construction, validity, enforcement, and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

(j) Consent to Jurisdiction and Service of Process. Each party hereby (i) irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Wilmington, Delaware for the purpose of any action, claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or investigation arising out of or based upon this Agreement or relating to the subject matter hereof, (ii) waives to the extent not prohibited by applicable law, and agrees not to assert by way of motion, as a defense or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of the above named courts,

that its property is exempt or immune from attachment or execution, that any such proceeding brought in one of the above named courts is improper, or that this Agreement or the subject matter hereof or thereof may not be enforced in or by such court and (iii) agrees not to commence or maintain any action, claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or investigation arising out of or based upon this Agreement or relating to the subject matter hereof or thereof other than before one of the above named courts nor to make any motion or take any other action seeking or intending to cause the transfer or removal of any such action, claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or investigation to any court other than one of the above named courts whether on the grounds of inconvenient forum or otherwise. Each party hereto hereby consents to service of process in any such proceeding in any manner permitted by Delaware law, and agrees that service of process by registered or certified mail, return receipt requested, at its address specified pursuant to Section 11(h) hereof is reasonably calculated to give actual notice.

(k) Jury Waiver. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HEREBY WAIVES, AND COVENANTS THAT SUCH PARTY WILL NOT ASSERT, ANY RIGHT TO TRIAL BY JURY ON ANY ISSUE IN ANY PROCEEDING, WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE, IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH, RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HEREUNDER, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN TORT OR CONTRACT OR OTHERWISE.

(l) No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any party.

(m) Business Days. If any time period for giving notice or taking action hereunder expires on a day which is a Saturday, Sunday or legal holiday in the state in which the Company’s chief executive office is located, the time period shall automatically be extended to the business day immediately following such Saturday, Sunday or legal holiday.

(n) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. For all purposes of and under this Agreement, (i) the word “including” shall be deemed to be immediately followed by the words “without limitation”; (ii) words (including defined terms) in the singular shall be deemed to include the plural and vice versa; (iii) words of one gender shall be deemed to include the other gender as the context requires; (iv) “or” is not exclusive; and (v) the terms “hereof,” “herein,” “hereto,” “herewith” and any other words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular term or provision of this Agreement, unless otherwise specified.

* * * * *

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the day and year first above written.


		COMPANY

		Allied Systems Holdings, Inc., a Delaware Corporation

		By:
		Name:
		Its:


		YUCAIPA STOCKHOLDERS:

		Yucaipa American Alliance Fund I, LP
		a Delaware limited partnership

		By:
		Name:
		Its:


		Yucaipa American Alliance (Parallel) Fund I, LP
		a Delaware limited partnership

		By:
		Name:
		Its:

S-2


		OTHER STOCKHOLDERS:

		By:
		Name:
		Its:

S-3

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