Exhibit 10.9
Conformed Copy
AMENDMENT NO. 1 TO REGISTRATION AND PARTICIPATION AGREEMENT
AMENDMENT NO. 1, dated as of November 19, 1999 (the "Amendment"), to
the Registration and Participation Agreement, dated as of March 30, 1998 (the
"Agreement"), among NA Holding Corporation, a Delaware corporation (the
"Company") and Clayton, Dubilier & Rice Fund V Limited Partnership, a Cayman
Islands exempted limited partnership (together with any successor investment
vehicle managed by Clayton, Dubilier & Rice, Inc., the "CD&R Fund").
W I T N E S S E T H :
WHEREAS, the Company is a party to an Acquisition Agreement, dated
as of September 14, 1999, as amended from time to time (the "Acquisition
Agreement"), with NFC plc, a company organized under the laws of England and
Wales ("NFC"), pursuant to which the Company has issued as of the date hereof
174,961 shares of its Common Stock, par value $0.01 per share (the "Common
Stock") and has executed and delivered to NFC International Holdings
(Netherlands II) BV a Common Stock Purchase Warrant (the "Warrant") to purchase
87,480 shares of its Common Stock;
WHEREAS, the Company has entered into a Stock Subscription
Agreement, dated as of the date hereof, as amended from time to time (the "NFC
Subscription Agreement"), with NFC, pursuant to which the Company will issue and
sell to NFC, and NFC will purchase from the Company, on or before December 31,
1999, 56,338 shares of Common Stock;
WHEREAS, the Company has entered into a Stock Subscription
Agreement, dated as of the date hereof, as amended from time to time (the "CD&R
Fund Subscription Agreement") with the CD&R Fund, pursuant to which the Company
will issue and sell to the CD&R Fund, and the CD&R Fund will purchase from the
Company, on or before December 31, 1999, up to 281,690 shares of Common Stock
less such number of shares of Common Stock as NFC purchases on or before
December 31, 1999;
WHEREAS, in connection with the Acquisition Agreement, the Company,
North American Van Lines, Inc., NFC plc and the CD&R Fund have entered into a
Letter Agreement, dated as of the date hereof, as may be amended from time to
time, setting forth certain rights and obligations relating to the shares of the
Common Stock of the Company owned by NFC; and
WHEREAS, the Company and the CD&R Fund have agreed to amend the
Agreement and to make NFC a party to the Agreement, subject to the terms and
conditions of this Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein without other definition are used
as defined in the Agreement.
2. Amendment to Section 2 of the Agreement.
(a) The definition of "Qualifying Number" is hereby amended by
deleting the words "and Individual Investors" in the third line thereof.
(b) The definition "Registrable Securities" is hereby amended by
deleting "and" where it appears before clause "(c)" in the first sentence
thereof, by redesignating clause "(c)" as clause "(e)" and by adding new clauses
(c) and (d) to the first sentence thereof as follows:
"(c) any shares of Common Stock issued pursuant to the Acquisition
Agreement and upon exercise of the Warrant and any other shares of
Common Stock otherwise acquired by NFC or any of its Affiliates
pursuant to the NFC Stock Subscription Agreement or otherwise;"
"(d) any shares of Common Stock issued to the CD&R Fund pursuant to
the Second Fund Stock Subscription Agreement, and".
(c) The following new defined terms are hereby added to Section 2 in
alphabetical order:
"Acquisition Agreement": the Acquisition Agreement, dated as of
September 14, 1999, between the Company and NFC.
"NFC": NFC plc, a company organized under the laws of England and
Wales.
"NFC Stock Subscription Agreement": The stock subscription
agreement, dated as of the date hereof, between the Company and NFC relating to
the purchase by NFC of 56,338 shares of Common Stock.
"Second Fund Stock Subscription Agreement": The stock subscription
agreement, dated as of the date hereof, between the Company and the CD&R Fund
relating to the purchase by the Fund of up to 281,690 shares of Common Stock.
"Warrant": the Common Stock Purchase Warrant, dated as of November
19, 1999, to purchase 87,480 shares of Common Stock executed and delivered by
the Company to NFC International Holdings (Netherlands II) BV in connection with
the transactions contemplated by the Acquisition Agreement and any warrant to
purchase Common Stock issued in replacement or substitution of a portion or all
of such Warrant.
3. Amendment to Section 3 of the Agreement.
(a) Section 3.1(a) of the Agreement is hereby amended by adding
"(i)" before "Subject" in the first line thereof and adding a new subparagraph
(ii) thereto reading in its entirety as follows:
"(ii) Subject to the provisions of Section 3.6, at any time after six
months following the consummation of a Public Offering and so long as NFC
and its Affiliates owns at least 115,650 shares of Common Stock (as
adjusted for any stock split, share dividend, share recombination or
exchange), NFC shall have the right to make two written requests that
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the Company effect the registration under the Securities Act of all or
part of the Registrable Securities then held by NFC and any of its
Affiliates, which requests shall specify the intended method of
disposition thereof by NFC and any of its Affiliates, provided that the
minimum number of Registrable Securities covered by any such request shall
be equal to 115,650 shares of Common Stock."
(b) Section 3.1(b) of the Agreement is hereby amended by replacing
the reference to "Section 3.1" in subparagraph (x) thereof with a reference to
"Section 3.1(a)(i), by replacing the reference to "Section 3.1(a)" in
subparagraph (x) thereof with a reference to "Section 3.1(b)", and by replacing
the reference to "Section 3.1" in subparagraph (y) thereof with a reference to
"Section 3.1(a)(i)".
(c) Section 3.1(d) is hereby amended by replacing the first sentence
thereof in its entirety with the following:
"The Company will pay all Registration Expenses in connection with the
first three registrations which are effected as requested under Section
3.1(a)(i) and with the first registration which is requested pursuant to
Section 3.1(a)(ii), provided that if any pro rata allocation conducted in
accordance with Section 3.1(g) results in the registration of less than
80% of the shares of Registrable Securities for which NFC requested
registration pursuant to its first request under Section 3.1(a)(ii), then
NFC shall not be deemed to have used its first request for purposes of
either this Section 3.1(d) or Section 3.1(a)(ii)."
4. Amendment to Section 6.2. Section 6.2 is hereby amended by adding
after the word "Securities" at the end of the first sentence thereof the
following:
", provided, however, that so long as NFC or any of its Affiliates owns at
least 10% of the outstanding shares of Common Stock, this Agreement may
not be amended in a manner that adversely affects the rights of NFC or its
Affiliates under this Agreement without their prior written consent."
5. Amendment to make NFC a Party to this Agreement. The Agreement is
hereby amended to make NFC a party to the Agreement.
6. Miscellaneous. Except as expressly amended and modified hereby,
the Agreement is hereby reaffirmed.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective duly authorized representatives as of the
date first above written.
NA HOLDING CORPORATION
By /s/R. Barry Uber
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Name: R. Barry Uber
Title: President and Chief Executive Officer
CLAYTON, DUBILIER & RICE
FUND V LIMITED PARTNERSHIP
By CD&R Associates V Limited Partnership,
the general partner
By CD&R Investment Associates II, Inc.
By /s/Donald J. Gogel
-----------------------------------------
Name: Donald J. Gogel
Title: President and Chief Executive
Officer
NFC PLC
By /s/Jeremy Letchford
--------------------------------------------
Name: Jeremy Letchford
Title: Secretary
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