AMENDMENT NO. 1 to AMENDED AND RESTATED REGISTRATION RIGHTS AGREEEMNT

Exhibit 4.3.1

AMENDMENTNO. 1
to


AMENDED AND RESTATED REGISTRATION RIGHTS AGREEEMNT

 

ThisAMENDMENT NO. 1, dated as of November 23, 2004 (this “Amendment No. 1”),to the AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as ofSeptember 30, 2004 (the “Registration Rights Agreement”), is among ACACapital Holdings, Inc., a Delaware corporation (the “Company”), and the stockholders of theCompany listed on the signature pages hereto.

WHEREAS, pursuant to Section 19(d) of the RegistrationRights Agreement, the Registration Rights Agreement may be amended if theamendment is approved in writing by the Company and the holders of at least a majority of theRegistrable Securities; and

WHEREAS, the Company and the parties hereto wish to amendthe Registration Rights Agreement to provide that persons that acquire sharesof Series C Senior Convertible Preferred Stock after the date hereof may becomeparties to the Registration Rights Agreement by executing a Joinder Agreementin the form attached as Exhibit B hereto; and

NOW, THEREFORE, in consideration of the agreements andobligations set forth herein and for other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the parties heretohereby agree as follows:

 

1.             Amendment.

 

(a)           The Registration Rights Agreement is herebyamended to add a new Section 9(m) to read as follows:

“(m)        Joinder Agreement. Any person who becomes a holder ofeither Series B Senior Convertible Preferred Stock (the “Series B Preferred”)of the Company or Series C Senior Convertible Preferred Stock of the Company(the “Series C Preferred”) may become a party to this Agreement by executing aJoinder Agreement in the form attached hereto as Exhibit B anddelivering such Joinder Agreement to the Company and BSMB. Upon such executionand delivery, Schedule III of this Agreement shall be amended to include suchholder. Any holder of Series C Preferred executing and delivering a JoinderAgreement in accordance with this provision (i) shall be deemed a holder ofSeries B Registrable Securities for all purposes under this Agreement, and (ii)following conversion of such Series C Preferred into Series B Preferred inaccordance with the terms of the Series C Preferred shall continue to be aparty hereto as a holder of Series B Preferred.”

 

(b)           The Registration Rights Agreement is hereby amendedto add a new Exhibit B in the form attached hereto.

 

 



2.             Governing Law.

 

ThisAmendment No. 1 shall be governed in all respects by the laws of the State of Delaware, without reference to the conflict of laws principlesthereof.

 

3.             Counterparts.

ThisAmendment No. I may be executed in any number of counterparts, and each suchcounterpart hereof shall be deemed to be an original instrument, but all suchcounterparts together shall constitute but one agreement.

 

 

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INWITNESS WHEREOF, the parties hereto have executed and delivered this AmendmentNo. 1 as of the date first above written.

 

ACA CAPITAL HOLDINGS, INC.

 

 

 

 

 

By:

/s/ NORA J. DAHLMAN

 

 

Name: NORA J. DAHLMAN

 

 

Title: GENERAL COUNSEL & SECRETARY

 

 

 

 

Shares of Capital Stock

Stockholder

of the Company Owned

 

 

BSMB/ACA LLC

 

 

Series B Senior Convertible Preferred – 1,685,663.8305

By:

Bear Stearns Merchant Manager II, LLC,
its Manager

 

 

 

By:

JDH Management, LLC,

its Manager

 

 

 

By:

/s/ DAVID E. KING

 

 

Name: David E. King

 

 

Title:

 

 

 

DRAWBRIDGE SPECIAL

 

OPPORTUNITIES FUND LP

Series B Senior Convertible Preferred – 160,539.4124

 

 

By:

/s/ KEVIN J. TREACY

 

 

Name: KEVIN J. TREACY

 

 

Title: CHIEF FINANCIAL OFFICER

 

 

 

THE STEPHENS GROUP, INC.

 

 

Common – 237,623.8

 

Convertible Preference – 273.4

 

Senior Convertible Preferred – 25.8

By:

/s/ WARREN A. STEPHENS

Series B Senior Convertible Preferred – 267,565.6819

 

Name:

 

 

Title: President

 

 

 

THIRD AVENUE TRUST ON BEHALF OF

 

THE THIRD AVENUE VALUE FUND

Common – 118,811.9

SERIES

Convertible Preference – 258.7

 

Senior Convertible Preferred – 103.4

 

Series B Senior Convertible Preferred – 133,782.8436

By:

/s/ DAVID M. BARSE

 

 

Name: David M. Barse

 

 

Title: President

 

 

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THIRD AVENUE TRUST ON BEHALF OF

Common – 118,811.9

THE THIRD AVENUE SMALL-CAP

Convertible Preference – 258.7

VALUE FUND SERIES

Senior Convertible Preferred – 103.4

 

Series B Senior Convertible Preferred -133,782.8383

 

 

By:

/s/ DAVID M. BARSE

 

 

Name: David M. Barse

 

 

Title: President

 

 

 

CHESTNUT HILL ACA, LLC

Common – 237,623.8

 

Convertible Preference – 163.5

 

Series B Senior Convertible Preferred – 267,565.6983

 

 

By:

/s/ JOHN G. BERYLSON

 

 

Name:

 

 

Title:

 

 

 

INSURANCE PARTNERS, L.P.

 

 

 

By:

 

Common – 151,961.6

 

Name:

 

 

Title:

 

 

 

INSURANCE PARTNERS OFFSHORE

 

(BERMUDA) L.P.

 

 

 

By:

 

Common – 83,751.6

 

Name:

 

 

Title:

 

 

 

IP/MCLP, L.L.C.

 

 

 

By:

 

Common – 1,910.6

 

Name:

 

 

Title:

 

 

 

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LIFE INVESTORS INSURANCE

 

COMPANY OF AMERICA

 

 

 

 

Common- 59,405.9

 

Convertible Preference – 43.9

By:

/s/ JON L. SKAGGS

Series B Senior Convertible Preferred – 20,067.42655

 

Name:

 

 

Title:

 

 

 

TRANSAMERICA LIFE INSURANCE

 

COMPANY OF AMERICA

 

 

 

 

Common- 59,405.9

 

Convertible Preference – 43.9

By:

/s/ JON L. SKAGGS

Series B Senior Convertible Preferred – 20,067.42655

 

Name:

 

 

Title:

 

 

 

FW ACA INVESTORS, L.P.

 

 

 

 

Convertible Preference – 87.9

By:

/s/ KEVIN G. LEVY

Series B Senior Convertible Preferred – 17,659.3354

 

Name: Kevin G. Levy

 

 

Title: Vice President of Group III 31, LLC, General Partner

 

 

 

BANKAMERICA INVESTMENT

 

CORPORATION

 

 

 

By:

/s/ GARY M. TSUYUKI

Convertible Preference – 87.9

 

Name: Gary M. Tsuyuki

 

 

Title: Managing Director

 

 

 

 

 

 

 

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ExhibitB

 

JOINDER AGREEMENT

 

This JOINDER AGREEMENT, dated as of                    , 200    (this“Joinder Agreement”), is between ACA Capital Holdings, Inc., a Delawarecorporation (the “Company”), and                  (the “Joining Party”).

WHEREAS, the Company, BSMB/ACA LLC, a Delaware limited liabilitycompany, and other stockholders of the Company are parties to the Amended and Restated RegistrationRights Agreement, dated as of September 30, 2004, as amended from time to time in accordance with its terms (the “Registration RightsAgreement”);

WHEREAS, the Joining Party has become a holder ofSeries B Senior Convertible Preferred Stock ofthe Company;

 

WHEREAS, the Joining Party wishes to join andbecome a party to the Registration Rights Agreement, and the Company wishes toaccept the Joining Party as a party thereto, all on the terms ofthis Joinder Agreement; and

 

WHEREAS, this Joinder Agreement is intended tomodify the Registration Rights Agreement and is delivered pursuant to andconforms with the requirements of Section 9(m) of the Registration RightsAgreement;

 

NOW, THEREFORE, in consideration of the agreementsand obligations set forth herein and for other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the partieshereto hereby agree as follows:

 

1.             Joinder.

The Joining Party hereby joins and becomes a party to, and the Companyhereby accepts the Joining Party as a party to, the Registration RightsAgreement. The Company and the Joining Party each acknowledge and agree that the Joining Party is entitled to thebenefits, and is subject to the obligations, of a holder of Series BRegistrable Securities (as defined in the Registration Rights Agreement) underthe Registration Rights Agreement.

 

2.             Acknowledgment.

The Joining Party acknowledges that it has received a copy of theRegistration Rights Agreement.

 

3.             Schedule III.

For purposes of Schedule III of the Registration Rights Agreement, theJoining Party’s address and number of shares of Series B Senior ConvertiblePreferred Stock are:

 

B-1



 

Address:               [                                    ]

Attention:             [                                    ]

[Number of shares]

 

4.             Governing Law.

This Joinder Agreement shall begoverned in all respects by the laws of the State of Delaware, withoutreference to the conflict oflaws principles thereof.

 

5.             Counterparts.

 

This Joinder Agreement may be executed in any number of counterparts,and each such counterpart hereof shallbe deemed to be an original instrument, but all such counterparts togethershall constitute but one agreement.

 

 

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IN WITNESS WHEREOF, the parties hereto have executed and delivered thisJoinder Agreement as of the date first above written.

 

 

ACA CAPITAL HOLDINGS, INC.

 

 

 

By:

 

 

Name:

 

Title:

 

 

 

JOINING PARTY:

 

 

 

[________________________________]

 

 

 

By:

 

 

Name:

 

Title:

 

 

 

 

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