Milacron Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Glencore Finance AG
Xxxxxxxxxxxxxxxxx 0
XX-0000 Xxxx
XXXXXXXXXXX
Attention: Xxxxxx Xxxxxx
Mizuho International plc
Xxxxxxx House
One Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XXXXXX XXXXXXX
Attention: Xxxxxxx Xxxxxxx
April 5, 2004
Re: Note Purchase Agreement dated as of March 12, 2004
--------------------------------------------------
Dear Sir or Madam:
Reference is made to the Note Purchase Agreement dated as of
March 12, 2004 (the "Note Purchase Agreement"), among Milacron Inc., a Delaware
Corporation (the "Company") and Glencore Finance AG and Mizuho International
plc (each, an "Investor," and collectively, the "Investors"). Terms used but
not defined herein shall have the meanings assigned to them in the Note
Purchase Agreement.
Pursuant to Section 14.3 of the Note Purchase Agreement, each of the
Company and the Investors as Majority Holders hereby agree as follows:
(A) The definition of "Intercreditor Agreement" in Article I of the
Note Purchase Agreement is amended and restated in its entirety as follows:
"Intercreditor Agreement" means the Agreement, dated as of March 12,
2004, by and among Credit Suisse First Boston, acting through its Cayman
Islands branch, as Administrative Agent and Collateral Agent under the
Senior Secured Debt Facility, and each of the Investors, as may be
amended, restated or otherwise modified from time to time.
(B) Section 4.20 of the Note Purchase Agreement is amended and
restated in its entirety as follows:
Section 4.20 Vote Required.
(a) The affirmative vote of (i) the holders of a majority of the
outstanding shares of Common Stock entitled to vote thereon, voting
separately as a single class, and the holders of a majority of the voting
power of the outstanding shares of Common Stock and 4% Cumulative
Preferred Stock entitled to vote thereon, voting together as a single
class, are the only votes of the holders of any class or series of the
Company's Equity Interests necessary to increase the number of shares of
the Company's authorized Common Stock to underlie the Preferred Stock,
the Warrants and the Rights Offering, and (ii) a majority of the votes
cast thereon by the holders of the outstanding shares of Common Stock and
4% Cumulative Preferred Stock entitled to vote thereon, voting together
as a single class, is the only vote of the holders of any class or series
of the Company's Equity Interests necessary to approve the issuance of
the Preferred Stock under the shareholder approval policy of the New York
Stock Exchange (provided that the total votes cast represent over 50% in
interest of all outstanding shares of Common Stock and 4% Cumulative
Preferred Stock) (the affirmative votes described in clauses (i) and (ii)
of this sentence, collectively the "Stockholder Approval").
(b) The affirmative consent or vote of the holders of two-thirds of
the outstanding shares of 4% Cumulative Preferred Stock entitled to vote
thereon ("4% Cumulative Preferred Stockholder Consent"), voting
separately as a single class, and the affirmative vote of the holders of
a majority of the voting power of the outstanding shares of Common Stock
and 4% Cumulative Preferred Stock entitled to vote thereon, voting
together as a single class, are the only votes of the holders of any
class or series of the Company's Equity Interests necessary to enable the
Preferred Stock to be ranked senior in right of dividends and payment
upon liquidation to the 4% Cumulative Preferred Stock.
(C) Section 6.15 of the Note Purchase Agreement is amended and
restated in its entirety as follows:
Section 6.15 Voting Rights of Holders of the Series A Notes.
(a) The Company agrees to use commercially reasonable efforts to
cause up to a number of persons selected by Holders of the Series A Notes
(and/or any Common Stock into which such Series A Notes have been
converted), acting together, to be appointed or elected to a number of
directorships on the Board of Directors in proportion to the percentage
of fully diluted Common Stock represented by their outstanding Series A
Notes (on an as-converted basis and/or represented by any Common Stock
into which such Series A Notes have been converted), rounded up to the
nearest whole number (the "Series A Directors"); provided, however, that
the number of directors that the Holders of Series A
2
Notes (and/or any Common Stock into which such Series A Notes have been
converted) may select to be so appointed or elected to the Board of
Directors shall not exceed two-thirds of the total number of directors
sitting on the Board of Directors at any time, less one directorship. The
initial Series A Directors shall be as designated by written notice to
the Company from the Series A Majority Holders. Any person so selected by
the Series A Majority Holders to serve as a Series A Director shall be
reasonably qualified to serve as director and meet the requirements of
the definition of "independent" under the rules of the New York Stock
Exchange. The Series A Majority Holders shall have the right to select
the successor to any Series A Director who resigns or is removed from the
Board of Directors. The Company agrees that, at the option of the Series
A Majority Holders, at least one Series A Director designated by the
Series A Majority Holders shall serve on each of the committees of the
Board of Directors, subject to any restrictions under applicable law or
the rules and requirements of any securities exchange upon which any of
the Company's securities may be listed. Notwithstanding anything to the
contrary herein, one officer or employee of each Investor, if selected
for appointment or election as a Series A Director, shall not be subject
to the requirement that all Series A Directors shall meet the definition
of "independent" under the rules of the New York Stock Exchange.
(b) Within 5 Business Days of the Closing Date, the Board of
Directors shall pass a resolution increasing the size of the Board of
Directors to at least ten (10). Reasonably promptly thereafter, the Board
of Directors shall appoint one (1) person selected by the Holders of the
Series A Notes (and/or any Common Stock into which such Series A Notes
have been converted) to the vacant directorship on the Board of Directors
in accordance with clause (a) above. If such person is appointed to the
Board of Directors, the Company shall use commercially reasonable efforts
to cause such person to be elected as a director at the next stockholder
meeting called for the purpose of electing directors (the "Next
Stockholder Meeting"). It is understood that, effective as of the
election of directors at the Next Stockholder Meeting, the size of the
Board of Directors shall be reduced to eight (8). Reasonably promptly
after the date of the Next Stockholder Meeting, the Board of Directors
shall increase the size of the Board of Directors to a number sufficient
so that at least a majority of the directors shall be "independent" under
the rules of the New York Stock Exchange and so that the Board of
Directors may, and the Board of Directors shall, at such time appoint two
additional persons selected by the Holders of the Series A Notes (and/or
any Common Stock into which such Series A Notes have been converted) to
directorships on the Board of Directors in accordance with clause (a)
above.
(D) Section 13.5 of the Note Purchase Agreement is amended by
deleting the word "negligence" in the first sentence of such Section and
substituting in lieu thereof the words "gross negligence".
(E) Clause (a) of Section 14.5 of the Note Purchase Agreement is
amended by deleting the words "within 10 Business Days after the Closing" in
the first
3
sentence of such clause and substituting in lieu thereof the words "within 20
Business Days after the Closing".
(F) The Note Purchase Agreement is amended by inserting the
following new Section 14.14 immediately following Section 14.13:
Section 14.14 Subordination. The Notes and all Obligations
thereunder shall be subordinated pursuant to the terms thereof and the
terms of the Intercreditor Agreement.
(G) Except as expressly provided herein, the Note Purchase Agreement
shall remain in full force and effect and shall be otherwise unaffected
hereby. Upon the effectiveness of this letter agreement, the term "Note
Purchase Agreement" as used in the Note Purchase Agreement shall refer to the
Note Purchase Agreement as amended hereby.
(H) This letter agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(I) This letter agreement shall be governed by, and construed in
accordance with, the law of the State of New York, without giving effect to
any conflict of law provisions thereof other than New York General Obligations
Law Sections 5-1401 and 5-1402.
(J) In the event that a judicial proceeding is necessary, the sole
forum for resolving disputes arising out of or relating to this letter
agreement is the Supreme Court of the State of New York in and for the County
of New York or the federal courts located in such state and county, and
related appellate courts. The parties hereby irrevocably consent to the
jurisdiction of such courts and agree to said venue.
(K) The parties hereby irrevocably waive all right to a trial by
jury in any action, proceeding or counterclaim arising out of or relating to
this letter agreement or any other document or the transactions contemplated
hereby or thereby.
(L) The holding of any provision of this letter agreement to be
invalid or unenforceable by a court of competent jurisdiction shall not affect
any other provision of this letter agreement, which shall remain in full force
and effect. If any provision of this letter agreement shall be declared by a
court of competent jurisdiction to be invalid, illegal or incapable of being
enforced in whole or in part, such provision shall be interpreted so as to
remain enforceable to the maximum extent permissible consistent with
applicable law and the remaining conditions and provisions or portions thereof
shall nevertheless remain in full force and effect and enforceable to the
extent they are valid, legal and enforceable, and no provisions shall be
deemed dependent upon any other covenant or provision unless so expressed
herein.
4
(M) It is agreed that a waiver by any party of a breach of any
provision of this letter agreement shall not operate, or be construed, as a
waiver of any subsequent breach by the breaching party.
Very truly yours,
MILACRON INC.,
by /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman, President
and Chief Executive
Officer
Accepted and agreed as of the
date first above written:
GLENCORE FINANCE AG,
by /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
MIZUHO INTERNATIONAL PLC,
by /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Attorney
Copies to:
Cravath, Swaine & Xxxxx LLP
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
5
