EXHIBIT 10.3
AMENDMENT NO. 1, dated as of April
2, 2002 (this "Amendment No. 1"), to the
Amended and Restated Common and
Preferred Stock Purchase and
Shareholders' Agreement, dated as of
August 28, 1998 (the "Shareholders'
Agreement"), among BT INVESTMENT
PARTNERS, INC. ("BT Partners"), MTL
EQUITY INVESTORS, L.L.C. ("Equity LLC",
and together with BT Partners, the
"Purchasers"), APOLLO INVESTMENT
PARTNERS III, L.P. ("Apollo
Investment"), APOLLO OVERSEAS PARTNERS
III, L.P. ("Apollo Overseas"), and
APOLLO (U.K.) PARTNERS III, L.P. (f/k/a
APOLLO U.K. FUND III, L.P.) ("Apollo
U.K.", and together with Apollo
Investment and Apollo Overseas, the
"Apollo Entities") and QUALITY
DISTRIBUTION, INC. (f/k/a MTL INC.) (the
"Company").
RECITALS
The Company, the Purchasers and the Apollo Entities agree to
certain amendments to the Shareholders' Agreement, on the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Defined Terms. Unless otherwise defined herein, terms defined in
the Shareholders' Agreement are used herein as defined therein.
Section 2. Amendment to the Shareholders' Agreement.
2.1. Section 5.2(a) of the Shareholders' Agreement is hereby
amended by inserting at the beginning of Section 5.2(a), the following clause:
"Subject to Section 5.4,".
2.2. Section 5.2(b) of the Shareholders' Agreement is hereby
amended by:
(a) inserting in the first sentence of Section 5.2(b)
after the clause "For purposes of effecting any Designated Action," the
following clause: "subject to Section 5.4,"; and
(b) inserting in the second sentence of Section 5.2(b)
after the clause "Each Designated Shareholder agrees with the Proxyholder
that," the following clause: "except to the extent permitted by Section
5.4,".
2.3. Section 5.2(d) of the Shareholders' Agreement is hereby
amended by inserting at the beginning of Section 5.2(d), the following clause:
"Subject to Section 5.4,".
2.4. Article V of the Shareholders' Agreement is hereby amended by
inserting the following as Section 5.4:
"5.4 Limitation
Notwithstanding anything to the contrary contained or implied herein,
none of the foregoing provisions of this Article V (except for any limiting
phrases that refer to this Section 5.4) shall apply or be effective to the
extent that the voting power of the shares of Common Stock owned by the
Designated Shareholders, when combined with the voting power of the shares of
Common Stock owned by the Apollo Entity that owns the largest number of shares
of Common Stock, would exceed 79.99% of the total voting power of the Company.
To the extent that such combined voting power would exceed 79.99% of the total
voting power of the Company, the Designated Shareholders shall be deemed not to
have appointed the Proxyholder to take any Designated Actions and the Designated
Shareholders shall retain the right to take all Designated Actions in accordance
with their sole and absolute discretion, in proportion to their relative Common
Stock ownership percentage interests."
2.5. Effectiveness. This Amendment No. 1 shall become effective as of
the date hereof (the "Effective Date").
Section 3. References to the Shareholders' Agreement. From and after the
Effective Date, all references in the Shareholders' Agreement and any other
documents to the Shareholders' Agreement shall be deemed to be references to the
Shareholders' Agreement after giving effect to this Amendment No. 1.
Section 4. No Other Amendments. Except as expressly set forth herein, the
Shareholders' Agreement remains in full force and effect in accordance with its
terms and nothing contained herein shall be deemed (i) to be a waiver,
amendment, modification or other change of any term, condition or provision of
the Shareholders' Agreement or any other document (or a consent to any such
waiver, amendment, modification or other change), (ii) to be a consent to any
transaction or (iii) to prejudice any right or rights which the Company, the
Purchasers or the Apollo Entities may have under the Shareholders' Agreement
and/or any other document.
Section 5. Further Assurances. The parties hereto agree to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as may be reasonably requested in
connection with the administration and enforcement of this Amendment No. 1 and
to permit the exercise thereof in compliance with any applicable law.
Section 6. Notices. All notices, demands and requests of any kind to be
delivered to any party hereto in connection with this Amendment No. 1 shall be
delivered in accordance with the notice provisions contained in the
Shareholders' Agreement.
Section 7. Headings. The headings used herein are for convenience of
reference only and shall not affect the construction of, nor shall they be taken
into consideration in interpreting, this Amendment No. 1.
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Section 8. Counterparts. This Amendment No. 1 may be executed in any number
of separate counterparts, each of which shall be an original and all of which
taken together shall constitute one and the same instrument. Facsimile
counterpart signatures to this Amendment No. 1 shall be acceptable and binding.
Section 9. Applicable Law. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW).
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed and delivered as of the day and year first above written.
COMPANY:
-------
QUALITY DISTRIBUTION, INC.
By: /s/ Thomas L. Finkbiner
--------------------------------------
Name: Thomas L. Finkbiner
Title: President and Chief Executive Officer
THE PURCHASERS:
--------------
BT INVESTMENT PARTNERS, INC.
By: /s/ Charlie Ayres
--------------------------------------
Name: Charlie Ayres
Title: Managing Director
MTL EQUITY INVESTORS, L.L.C.
By: /s/ Edward Nadel
--------------------------------------
Name: Edward Nadel
Title: Vice President
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APOLLO ENTITIES:
---------------
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P.,
its General Partner
By: Apollo Capital Management II, Inc.,
its General Partner
By: /s/ Marc E. Becker
------------------------------------
Name: Marc E. Becker
Title:
APOLLO OVERSEAS PARTNERS III, L.P.
By: Apollo Advisors II, L.P.,
its General Partner
By: Apollo Capital Management II, Inc.,
its General Partner
By: /s/ Marc E. Becker
------------------------------------
Name: Marc E. Becker
Title:
APOLLO (U.K.) PARTNERS III, L.P.
By: Apollo Advisors II, L.P.,
its General Partner
By: Apollo Capital Management II, Inc.,
its General Partner
By: /s/ Marc E. Becker
------------------------------------
Name: Marc E. Becker
Title:
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