Exhibit 4.1
Attachment D to Notarial Deed No.___/1998 of the Notary ____
Shareholders' Agreement
by and between
Excel Industries, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000, XXX,
represented by Xxxxxx Xxxxxxx, Esq.
- hereinafter "Excel" -
and
Excel Industries, Inc.,
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000, XXX
represented by Xxxxxx Xxxxxxx, Esq.
- hereinafter the "Guarantor" -
on one side
and
Hella KG Hueck & Co.,
Xxxxxxxxx Xxxxxx 00,
00000 Xxxxxxxxx, Xxxxxxx
represented by Xxxxxxx Xxxxxx, Esq. by virtue of a Power of
Attorney dated March 11, 1998
- hereinafter "Hella KG" -
on the other side.
Recitals
(A) WHEREAS Excel and Hella KG will, subject to the registration
of Excel as a limited partner (Kommanditist) with the Commercial
Register, be the sole limited partners of Xxxxxx GmbH & Co. KG
("Xxxxxx KG"), a German law limited partnership with registered
offices at Plettenberg, registered with the Commercial Register of
Plettenberg under registry no. HRA 10, and the sole shareholders of
Xxxxxx KG's sole general partner (Komplementar), Xxxxxx
Geschaftsfuhrungsgesellschaft GmbH ("Xxxxxx GmbH").
(B) WHEREAS Excel and Hella KG (collectively the "Parties") wish
to
(i) amend the Partnership Agreement of Xxxxxx KG and the
Articles of Association of Xxxxxx GmbH and
(ii) to define certain principles governing the business of,
and the conduct of the further management in, Xxxxxx
GmbH, Xxxxxx KG and its subsidiaries.
(C) WHEREAS the Parties wish to increase Excel's and Hella KG's
participation in Xxxxxx KG's fixed capital by way of increasing
the fixed nominal capital quota (feste Kapitaleinlage).
NOW, THEREFORE, the Parties hereto agree as follows:
PART I.
SHAREHOLDERS' AGREEMENT
Section 1
Allocation of Results
(1) Excel and Hella KG agree that the profits of Xxxxxx KG as
well as the profits of the subsidiaries of Xxxxxx KG shall be
distributed to the respective shareholders/partners as follows:
(a) Excel and Hella KG agree that (except for
withdrawals of Excel and Hella KG from Xxxxxx KG necessary to
pay their personal income tax/corporate income tax in respect
of profits of Xxxxxx KG) no profits shall be
distributed/withdrawn from Xxxxxx KG and/or its subsidiaries
unless the Equity as defined hereinafter of the respective
company, profits of which are to be distributed/withdrawn,
amounts to at least 33.3% of the balance sheet total
(Bilanzsumme, Section 266(3) HGB).
The equity for these purposes shall mean the equity ("Equity")
within the meaning of Section 266(3) A HGB. In respect of
Xxxxxx KG the equity shall be the sum of the balances on
capital accounts I and III as set forth in the new Partnership
Agreement as set forth in Section 6 below.
(b) As soon and as long as the Equity amounts to at
least 33.3% of the balance sheet total (Bilanzsumme) of such
company all profits of such company shall be
distributed/withdrawn to/by the respective shareholder or
Excel/Hella KG in their entirety to the extent permissible
under the law or the Partnership Agreement; provided, however,
that the Equity shall not be reduced below 33.3% of the
balance sheet total (Bilanzsumme) by such
distribution/withdrawal.
(c) Deviations from the policy set forth above shall
only be allowed if Excel and Hella so unanimously resolve.
(2) Excel and Hella KG shall ensure that this distribution
policy is followed both by Xxxxxx KG and by all of Xxxxxx KG's
subsidiaries. Excel and Hella KG in particular exercise their
shareholders' rights accordingly.
Section 2
Arm's Length Clause
All transactions carried out between
(1) any of the Companies (as defined in the Share and
Partnership Interest Sale and Purchase Agreement of even date).
(2) Xxxxxx KG and the Parties hereto or any of their
respective affiliates, and
(3) any member of the Xxxxxx KG Group and the Parties hereto
or any of their respective affiliates.
shall be at arm's length terms and in accordance with normal market
conditions.
Section 3
Change of the Name of Xxxxxx GmbH
Excel and Hella KG further agree that in the event that Xxxxxx
GmbH is no longer General Partner of Xxxxxx KG, they will ensure
that Xxxxxx GmbH at once changes its name in such a way that the
word "Xxxxxx" will be deleted.
Section 4
Increase of Xxxxxx KG's Equity
(1) Immediately following the registration of Excel as a
Limited Partner of Xxxxxx KG, Excel and Hella KG are obligated to
make a further contribution to the fixed capital quota of Xxxxxx KG
in a total amount of DM 33,340,000.00.
(2) Excel and Hella KG hereby agree that from this further
contribution only a part shall be registered as further Liability
Contribution ("Hafteinlage"), whereas, the remaining further
contribution should be paid as a non-registered further Compulsory
Contribution ("Pflichteinlage").
(3) More specifically, Excel and Hella KG shall make the
following contributions:
Excel:
- Liability Contribution
(Hafteinlage) DM 13,340,000.00
in addition to the already existing Liability
Contribution
(Hafteinlage) DM 17,000.000.00
- Further non-registered Compulsory Contribution
(Pflichteinlage) DM 14,000,000.00
Hella KG:
- further non-registered Compulsory Contribution
(Pflichteinlage) DM 6,000,000.00
-----------------
DM 33,340,000.00
(4) After the capital increase Excel and Hella KG shall hold
the following participations in the fixed capital quota:
Excel (Gesamtpflichteinlage) DM 44,340,000.00
-----------------
out of which a partial amount of DM 30,340,000.00
represents Excel's Liability Contribution (Hafteinlage)
Hella KG (Gesamtpflichteinlage) DM 19,000.000.00
-----------------
out of which a partial amount of DM 13,000.000.00
represents Hella KG's Liability Contribution
(Hafteinlage)
(5) Excel's total liability contribution of DM 30,340,000.00
shall be one unitary liability contribution (eine einheitliche
Hafteinlage).
PART II.
New Articles of Association/new Partnership Agreement
Section 5
New Articles of Association of Xxxxxx GmbH
Immediately following the registration of Excel as Limited
Partner of Xxxxxx KG, Excel and Hella KG shall amend the Articles
of Association of Xxxxxx GmbH as it is described in greater detail
in Annex 1 to this Agreement.
Section 6
New Articles of Partnership of Xxxxxx KG
Immediately following the registration of Excel as Limited
Partner of Xxxxxx KG, Excel and Hella KG shall amend the Articles
of Partnership of Xxxxxx KG as it is described in greater detail in
Annex 2 to this Agreement.
Section 7
Interim Period
For the time period until the new Articles of Association of
Xxxxxx GmbH and the new Partnership Agreement of Xxxxxx KG shall be
entered into as described in the above mentioned Sections 5 and 6,
Xxxxxx KG and Excel already now agree that within their internal
relationship, they will act as if the new Partnership Agreement and
the new Articles of Association have already become effective.
PART III
General Provisions
Section 8
Guarantee
The Guarantor herewith guarantees the due performance of
Excel's obligations under and in connection with this Agreement.
Section 9
Miscellaneous
(1) This Agreement is subject to the laws of Germany.
(2) In case of contradiction or discrepancy between the
Company's Articles of Association and this Agreement, the latter
shall prevail.
(3) Amendments and alterations must be in writing and with
express reference to this Agreement, unless notarization or any
other form is required.
(4) This Agreement and any rights and obligations hereunder
may not be assigned and/or transferred in whole or in part without
prior written consent of the other party hereto.
(5) If any of the foregoing provisions shall become or be
held invalid, ineffective or unenforceable, all other provisions
shall remain in full force and effect. The invalid, ineffective or
unenforceable provision shall be deemed to be automatically amended
and replaced, without the necessity of further action by the
Parties hereto, to such form, substance, time and measure as shall
be valid, effective and enforceable and as shall accomplish as far
as possible the purpose and intent of the invalid, ineffective or
unenforceable provision. The aforesaid shall apply, mutatis
mutandis, to any situation not contemplated and/or covered by this
Agreement.
Made at _______________, this ____ day of __________,1998.
Hella KG Hueck & Co.
by:_________________________
____________________________
( )
Excel Industries, Inc.
by:_________________________
____________________________
( )
Guarantor
by:_________________________
____________________________
( )
