AMENDED AND RESTATED
SECURITIES PURCHASE AND HOLDERS AGREEMENT
SECURITIES PURCHASE AND HOLDERS AGREEMENT, dated December 22, 1997
(the "Agreement"), by and among DELCO REMY INTERNATIONAL, INC., a Delaware
corporation (formerly known as "DR International, Inc.") (the "Company");
CITICORP VENTURE CAPITAL LTD., a New York corporation ("CVC"); WORLD EQUITY
PARTNERS, L.P., a Delaware limited partnership ("WEP"); MASCOTECH AUTOMOTIVE
SYSTEMS GROUP, INC., a Michigan corporation ("Masco"); and the persons named on
the signature pages hereto (the "Other Investors"). The individuals listed on
Schedule I hereto are sometimes referred to hereinafter as the Original
Management Investors (the "Original Management Investors"); and the individuals
listed on Schedule II hereto are sometimes referred to hereinafter as the New
Management Investors (the "New Management Investors"). CVC, WEP and Masco are
sometimes referred to hereinafter individually as an "Institutional Investor"
and together as the "Institutional Investors"; the Original Management Investors
and New Management Investors are sometimes referred to hereinafter collectively
as the "Management Investors"; and CVC, WEP, Masco, the Other Investors and the
Management Investors are sometimes referred to hereinafter individually as an
"Investor" and collectively as the "Investors.".
A. The Company and each of the Investors is a party to the
Securities Purchase and Holders Agreement dated July 29, 1994 which provided,
among other things, for the purchase by the Investors of (i) Class A Common
Stock, par value $.01 per share ("Class A Common Stock") of the Company, (ii)
Class B Common Stock, par value $.01 per share ("Class B Common Stock") of the
Company, and/or (iii) a warrant exercisable for 100,000 shares of Class A Common
Stock ("Warrant"). The Class A Common Stock and Class B Common Stock are
hereinafter referred to together as the "Common Stock" or "Shares."
B. The Management Investors are employed by the Company and/or
its subsidiaries. Each of the Management Investors has purchased shares of
Class A Common Stock.
C. As used herein, the term "Securities" shall mean the Warrant
(including shares of Common Stock to be issued upon exercise thereof) and the
Common Stock held by any party hereto, including shares of Common Stock and all
other securities of the Company (or a successor to the Company) received on
account of ownership of the Common Stock, including all securities issued in
connection with any merger, consolidation, stock dividend, stock distribution,
stock split, reverse stock split, stock combination, recapitalization,
reclassification, subdivision, conversion or similar transaction in respect
thereof.
D. The Investors and the Company wish to set forth certain
agreements regarding their future relationships and their rights and obligations
with respect to the Securities.
Terms
In consideration of the mutual covenants contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Definitions. As used in this Agreement, the following terms
shall have the following meanings:
(a) "Affiliate" means with respect to any person, a corporation in
which such person owns, directly or indirectly through one or
more intermediaries, fifty percent (50%) or more of the
outstanding capital stock of such corporation.
(b) "Permitted Transferee" means:
(i) in the case of any Investor or Permitted Transferee who
is a natural person, his spouse or children or
grandchildren (in each case, natural or adopted), any
trust for his benefit or the benefit of his spouse or
children or grandchildren (in each case, natural or
adopted), or any corporation or partnership in which the
direct and beneficial owner of all of the equity
interest is such individual Investor or Permitted
Transferee or his spouse or children or grandchildren
(in each case, natural or adopted) (or any trust for the
benefit of such persons);
(ii) in the case of any Investor or Permitted Transferee who
is, in each case, a natural person, the heirs,
executors, administrators or personal representatives
upon the death of such Investor or Permitted Transferee
or upon the incompetency or disability of such Investor
or Permitted Transferee for purposes of the protection
and management of his assets;
(iii) in the case of an Investor or Permitted Transferee who
is not a natural person, any Affiliate of such Investor;
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(iv) in the case of any Investor or Permitted Transferee, any
person or other entity if such person or other entity
takes such Securities pursuant to a sale in connection
with a public offering under the Securities Act or
following a public offering in open market transactions
or under Rule 144 under the Securities Act;
(v) in the case of CVC, any of its employees, officers or
directors;
(vi) in the case of Masco and its Permitted Transferees,
MascoTech Corporation, a Delaware corporation ("MC"),
and any corporation in which MC owns, directly or
indirectly through one or more intermediaries, one
hundred percent (100%) of the outstanding capital stock
of such corporation; and
(vii) in the case of WEP, a distribution of Securities to its
limited partners.
ARTICLE II
[Intentionally Omitted]
ARTICLE III
[Intentionally Omitted]
ARTICLE IV
COVENANTS AND REPRESENTATIONS
4.1. Legend. The Warrant and certificates representing the Shares
shall bear the following legend in addition to any other legend required under
applicable law:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE TRANSFERRED WITHOUT REGISTRATION UNDER
THE SECURITIES ACT OR STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
THE TERMS AND CONDITIONS OF A SECURITIES
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PURCHASE AND HOLDERS AGREEMENT BY AND AMONG THE COMPANY AND THE
HOLDERS SPECIFIED THEREIN, A COPY OF WHICH AGREEMENT IS ON FILE AT
THE PRINCIPAL OFFICE OF THE COMPANY. THE SALE, TRANSFER OR OTHER
DISPOSITION OF THE SECURITIES IS SUBJECT TO THE TERMS OF SUCH
AGREEMENT AND THE SECURITIES ARE TRANSFERABLE ONLY UPON PROOF OF
COMPLIANCE THEREWITH.
4.2. Regulatory Compliance Cooperation. So long as CVC or its
Affiliates beneficially own any of the Securities, before the Company redeems,
purchases or otherwise acquires, directly or indirectly, or converts or takes
any action with respect to the voting rights of, any shares of any class of its
capital stock or any securities convertible into or exchangeable for any shares
of any class of its capital stock, the Company shall give CVC thirty (30) days
prior written notice of such pending action. Upon the written request of CVC
made within thirty (30) days after its receipt of any such notice, stating that
after giving effect to such action CVC would have a Regulatory Problem (as
described below), the Company will defer taking such action for such period (not
to extend beyond ninety (90) days after CVC's receipt of the Company's original
notice) as CVC requests to permit it and its Affiliates to reduce the quantity
of Securities held by it and its Affiliates in order to avoid the Regulatory
Problem. In addition, the Company will not be a party to any merger,
consolidation, recapitalization or other transaction pursuant to which CVC would
be required to take any voting securities, or any securities convertible into
voting securities, which might reasonably be expected to cause CVC to have a
Regulatory Problem. For purposes of this paragraph, a person will be deemed to
have a "Regulatory Problem" when such person and such person's Affiliates would
own, control or have power over a greater quantity of securities of any kind
issued by the Company than are permitted to be owned under any requirement of
any governmental authority applicable to such person.
4.3. Notation. A notation will be made in the appropriate transfer
records of the Company with respect to the restrictions on transfer of the
Securities referred to in this Agreement.
ARTICLE V
CORPORATE ACTIONS
5.1. Certificate of Incorporation and Bylaws. Each Investor has
reviewed the Amended and Restated Certificate of Incorporation and Amended and
Restated Bylaws of the Company in the forms attached hereto as Exhibits A-1 and
A-2, respectively, and hereby approves and ratifies the same.
5.2. Directors and Voting Agreements. Each Investor and Permitted
Transferee agrees that it shall take, at any time and from time to time, all
action necessary
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(including voting the Class A Common Stock owned by him, her, or it, calling
special meetings of stockholders and executing and delivering written consents)
to ensure that the Board of Directors of the Company is composed at all times of
seven persons as follows: Xxxxxx X. Xxxxxxxx (so long as he continues to serve
as Chairman of the Board of Directors of the Company); one individual nominated
by Masco who shall initially be X. X. Xxxxxx; two individuals nominated by CVC;
Xxxxx X. Xxxxxxx (so long as he continues to serve as an officer of or a
consultant to the Company); Xxxxxx X. Xxxxxx (so long as he continues to serve
as President of the Company); and one independent nominated by the Board of
Directors; provided, however, that in the event Masco owns less than seven
percent (7%) of the Common Stock as a result of a sale or sales of such Common
Stock by Masco, then Masco shall no longer have the right to nominate a director
pursuant to the provisions of this Agreement; and provided, further, however,
that in the event CVC owns less than seven percent (7%) of the Common Stock as a
result of a sale or sales of such Common Stock by CVC, then CVC shall no longer
have the right to nominate a director or directors pursuant to the provisions of
this Agreement.
5.3. Right to Remove Certain of the Company's Directors. Each of
CVC and Masco, as the case may be, may request that any director nominated by it
be removed (with or without cause) by written notice to the other Investors,
and, in any such event, each Investor shall promptly consent in writing or vote
or cause to be voted all shares of Class A Common Stock now or hereafter owned
or controlled by it for the removal of such person as a director. In the event
any person ceases to be a director, such person shall also cease to be a member
of any committee of the Board of Directors of the Company.
5.4. Right to Fill Certain Vacancies in Company's Board. In the
event that a vacancy is created on the Company's Board of Directors at any time
by the death, disability, retirement, resignation or removal (with or without
cause) of a director nominated by CVC or Masco, as the case may be, or if
otherwise there shall exist or occur any vacancy on the Company's Board of
Directors in a directorship subject to nomination by CVC or Masco, as the case
may be, such vacancy shall not be filled by the remaining members of the
Company's Board of Directors but each Investor hereby agrees promptly to consent
in writing or vote or cause to be voted all shares of Class A Common Stock now
or hereafter owned or controlled by it to elect that individual nominated to
fill such vacancy and serve as a director, as shall be designated by CVC or
Masco, as the case may be.
5.5. Termination of Voting Agreements. The voting agreements in
Section 5.2, 5.3, 5.4 and 5.5 shall terminate on July 28, 2004 unless extended
in the manner provided in Section 218 of the General Corporation Law of the
State of Delaware.
ARTICLE VI
RESTRICTIONS ON TRANSFERS OF
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SECURITIES HELD BY MANAGEMENT INVESTORS
6.1. Certain Definitions. The terms defined below shall have the
following meanings when used in this Article VI:
(a) "Company" means the Company and all other entities in which
the Company from time to time owns, directly or indirectly, fifty percent (50%)
or more of the stock or assets.
(b) "Cause", when used in connection with the termination of a
Management Investor's employment with the Company, means the Management
Investor's (i) act or acts of dishonesty, moral turpitude or criminality, (ii)
failure to perform his duties as an employee as reasonably determined by the
Board of Directors of the Company acting in good faith after reasonable notice
to such employee by the Board of Directors of the Company and, if so recommended
by the Board of Directors, after such employee has not cured such failure after
30 days opportunity to do so, or (iii) willful or deliberate violations of his
obligations to the Company (whether such obligations are designated by the Board
of Directors or are set forth in an employment agreement) that result in injury
to the Company.
(c) "Permanent Disability" means as used herein, "Total
Disability" or "Totally Disabled" shall mean any physical or mental ailment or
incapacity as determined by a licensed physician agreed to by the Company and
the Management Investor (or, in the event that the Management Investor and the
Company cannot so agree, by a licensed physician agreed upon by a physician
selected by the Management Investor and a physician selected by the Company),
which prevents the Management Investor from performing the duties incident to
the Management Investor's employment hereunder which has continued for a period
of either (i) ninety (90) consecutive days in any 12-month period or (ii) one
hundred eighty (180) total days in any 12-month period, and which can reasonably
be expected to be of permanent duration.
(d) "Public Offering" means a successfully completed firm
commitment underwritten public offering pursuant to an effective registration
statement under the Securities Act in respect of the offer and sale of shares of
Common Stock for the account of the Company resulting in aggregate net proceeds
to the Company and any stockholder selling shares of Common Stock in such
offering of not less than $20,000,000.
(e) "Securities" means any and all of the Shares and all other
securities of the Company (or a successor to the Company) received on account of
ownership of the Shares, including any and all securities issued in connection
with any merger, consolidation, stock dividend, stock distribution, stock split,
reverse stock split, stock combination, recapitalization, reclassification,
subdivision, conversion or similar transaction in respect thereof which are
subject to the Purchase Option at the date of determination.
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6.2. Restrictions on Transfer. Notwithstanding anything to the
contrary contained herein, no Original Management Investor shall effect a
Transfer prior to July 29, 1999 of any Securities which at the time of Transfer
are subject to the Purchase Option (as hereinafter defined) and no New
Management Investor shall effect a Transfer prior to the third anniversary of
the "Closing Date". specified for each such New Management Investor (the "Third
Anniversary") opposite such person's name on Schedule II hereto, of any
Securities which at the time of Transfer are subject to the Purchase Option,
other than (i) pursuant to Section 6.3 in connection with the Purchase Option,
(ii) with the consent of the Company (as evidenced by a resolution duly adopted
by at least a majority of the non-employee members of the Company's Board of
Directors), (iii) to a Permitted Transferee of the Management Investor in
question or (iv) in connection with a Public Offering in which such Management
Investor is permitted to participate. In exercising the consent and approval
provided for in clause (ii), the Company may employ its sole discretion in
evaluating the nature of the proposed transferee and the Company may impose such
conditions on Transfer as it deems appropriate in its sole discretion,
including, but not limited to, requirements that the transferee be an employee
of the Company and that the transferee purchase the Management Investor's
Securities as a "Management Investor" subject to the restrictions of this
Article VI. In the event any Transfer is authorized pursuant to clause (ii) to
an employee of the Company as a "Management Investor," such employee shall
execute an agreement, in form and substance satisfactory to the Company,
pursuant to which such employee shall agree to be bound by the terms and
conditions of this Agreement as were binding upon the transferor of such Shares,
and such other provisions as the Company may determine, and upon such execution
such employee shall be entitled to the benefit of such provisions hereof and
such other provisions as the Company determines and are set forth in such
agreement. Any purported Transfer in violation of this Agreement shall be null
and void and of no force and effect and the purported transferees shall have no
rights or privileges in or with respect to the Company. Notwithstanding the
foregoing provisions, each Management Investor agrees that he will not effect a
Transfer of any Securities prior to the lapse of such period of time following
acquisition thereof as may be required to comply with applicable state
securities laws.
For the purposes of Article VI, the "Permitted Transferees" of a
Management Investor shall be (1) the executors, administrators, heirs and
distributees of the Management Investor or her or his transferees to whom the
Common Stock is Transferred by will or the laws of descent and distribution on
account of death, (2) the Management Investor's spouse or children or
grandchildren (in each case, natural or adopted) and (3) a trust the
beneficiaries of which, a corporation the stockholders and directors of which,
or a partnership the limited and general partners of which include only the
Management Investor, her or his spouse or her or his children or grandchildren
(in each case, natural or adopted); provided, that, as a condition to a Transfer
to any Permitted Transferee such Permitted Transferee shall agree, in writing
and in form and substance reasonably satisfactory to the Company, to become
bound, and thereby shall become bound, by all the terms of this Agreement
applicable to the Management Investor transferring such Securities. The
Termination Date (as hereinafter defined) for a Permitted
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Transferee shall be the Termination Date with respect to the Management Investor
who first acquired the Common Stock held by such Permitted Transferee pursuant
to this Agreement.
6.3. Purchase Option.
(a) General Terms. In the event that on or prior to July 29, 1999
as to the Original Management Investors, or the Third Anniversary as to the New
Management Investors, any Management Investor shall cease to be employed by the
Company due to retirement, resignation or termination by the Company, with or
without Cause, such Management Investor (or his transferees, successors or
assigns) shall give prompt notice to the Company of such termination (except in
the case of termination by the Company with or without Cause), and the Company,
or one or more designee(s) selected by a majority of the members of the Board of
Directors, shall have the right and option at any time within 90 days after the
later of the effective date of such termination of employment (the "Termination
Date") or the date of the Company's receipt of the aforesaid notice, to purchase
from such Management Investor, or his transferees, successors or assigns, as the
case may be, any or all of the Securities then owned by such Management Investor
(and his Permitted Transferees) at a purchase price equal to the Option Purchase
Price (as hereinafter defined). The Company or its designee(s) shall give
notice to the terminated Management Investor (or his transferees, successors or
assigns) of its intention to purchase Securities at any time not later than 90
days after the Termination Date. (The right of the Company and its designee(s)
set forth in this Section 6.3 to purchase a terminated Management Investor's
Securities is hereinafter referred to as the "Purchase Option").
Notwithstanding anything to the contrary contained herein, upon the death or
Permanent Disability of a Management Investor, the Purchase Option shall
terminate immediately and automatically as to the Securities held by such
Management Investor and his Permitted Transferees which, at the time of such
Management Investor's death or Permanent Disability were subject to the Purchase
Option.
(i) Exercise of Purchase Option. The Purchase Option shall
be exercised by written notice to the terminated Management Investor (or his
transferees, successors or assigns) signed by an officer of the Company on
behalf of the Company or by its designee(s), as the case may be. Such notice
shall set forth the number of shares of Common Stock desired to be purchased and
shall set forth a time and place of closing which shall be no earlier than 10
days and no later than 60 days after the date such notice is sent. At such
closing, the seller shall deliver the certificates evidencing the number of
shares of Common Stock to be purchased by the Company and/or its designee(s),
accompanied by stock powers duly endorsed in blank or duly executed instruments
of transfer, and any other documents that are necessary to transfer to the
Company and/or its designee(s) good title to such of the Securities to be
transferred, free and clear of all pledges, security interests, liens, charges,
encumbrances, equities, claims and options of whatever nature other than those
imposed under this Agreement, and concurrently with such delivery, the Company
and/or its designee(s) shall deliver to the seller the full amount of the
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Option Purchase Price for such Securities in cash by certified or bank cashier's
check.
(ii) Option Purchase Price. Subject to Section 6.3(a)(iii)
below, if the Management Investor shall be terminated by the Company with or
without Cause or shall cease to be employed by the Company by reason of
retirement or resignation, the "Option Purchase Price" for the Common Stock to
be purchased from such Management Investor pursuant to the Purchase Option (such
number of shares of Common Stock being the "Purchase Number") shall equal the
price calculated as set forth in the table below opposite the applicable
Termination Date of such Management Investor:
Original Management Investors
If the Termination Occurs: Option Purchase Price
On or prior to July 29, 1995 Adjusted Cost Price multiplied by the
Purchase Number
After July 29, 1995 and on or Adjusted Cost Price multiplied by 80%
prior to July 29, 1996 of the Purchase Number
After July 29, 1996 and on or Adjusted Cost Price multiplied by 60%
prior to July 29, 1997 of the Purchase Number
After July 29, 1997 and on or Adjusted Cost Price multiplied by 40%
prior to July 29, 1998 of the Purchase Number
After July 29, 1998 and on or Adjusted Cost Price multiplied by 20%
prior to July 29, 1999 of the Purchase Number
New Management Investors
If the Termination Date Occurs: Option Purchase Price
On or prior to the first anniversary Adjusted Cost Price multiplied by the
of the Closing Date Purchase Number
After the first anniversary of the Adjusted Cost Price multiplied by 66
Closing Date, and on or prior to the 2/3% of the Purchase Number
second anniversary of the Closing Date Adjusted Cost Price multiplied by 33
After the second anniversary of the 1/3% of the Purchase Number
Closing Date, and on or prior to the
third anniversary of the Closing Date
As used herein, "Closing Date" for each New Management Investor means the date
specified opposite such person's respective name on Schedule II hereto.
Notwithstanding anything to the contrary contained herein, in
connection with the exercise of any Purchase Option pursuant to Section 6.3, the
Company may deduct from the
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Option Purchase Price paid to any Management Investor the aggregate amount of
the outstanding principal and accrued but unpaid interest due on any Promissory
Note of such Management Investor to the Company.
As used herein, "Adjusted Cost Price" for each share of Common Stock
means the original purchase price per share for the Management Investor's Common
Stock as set forth in Section 1.1 (including any shares of Common Stock which
have been converted into other shares of capital stock of the Company, and
adjusted for any stock dividend payable upon, or subdivision or combination of,
the Common Stock);
(iii) Sale in Public Offering. Share sold in a Public
Offering will be sold free of the restrictions contained in this Article VI, but
this Article VI shall continue to apply in accordance with its terms to all
Common Stock not sold in such offering. If less than all of a Management
Investor's shares of Common Stock are sold in such an offering, for purposes of
any subsequent calculation hereunder of the Option Purchase Price, the Option
Purchase Price shall equal the Adjusted Cost Price multiplied by the product of
the Adjusted Cost Price Percentage and the Adjusted Purchase Number (as
hereinafter defined), where: (w) "Adjusted Purchase Number" means the remainder
determined by subtracting the Publicly-Sold Stock from the Purchase Number, (x)
"Publicly-Sold Stock" means the total number of shares of Common Stock
previously sold by the respective Management Investor in a public offering, and
(z) "Adjusted Cost Price Percentage" means (1) 20% multiplied by the number of
years elapsed from July 29, 1994 for the Original Management Investors, and (2)
33 1/3% multiplied by the number of years elapsed from the "Closing Date"
specified on Schedule II with respect to the respective New Management
Investors.
(b) Company's Right of First Refusal. In the event that, on or
prior to July 29, 1999 as to the Original Management Investors, and the Third
Anniversary as to the New Management Investors, (i) a Management Investor is no
longer employed by the Company; (ii) the Company or its designee has declined to
exercise the Purchase Option with respect to any of such Management Investor's
Common Stock; and (iii) the Management Investor thereafter proposes to sell any
or all of such Common Stock to a third party in a bona fide transaction, the
Management Investor may not Transfer such Common Stock without first offering to
sell such Common Stock to the Company pursuant to this Section 6.3(b).
The Management Investor shall deliver a written notice (a "Sale
Notice") to the Company describing in reasonable detail the Securities being
offered, the name of the offeree, the purchase price requested and all other
material terms of the proposed Transfer. Upon receipt of the Sale Notice, the
Company, or a designee selected by a majority of the non-employee members of the
Board of Directors of the Company, shall have the right and option to purchase
all or any portion of the Securities being offered at the price and on the terms
of the proposed Transfer set forth in the Sale Notice. Within 30 days after
receipt of the Sale Notice, the
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Company shall notify such Management Investor whether or not it wishes to
purchase any or all of the offered Securities.
If the Company elects to purchase any of the offered Securities, the
closing of the purchase and sale of such Securities shall be held at the place
and on the date established by the Company in its notice to the Management
Investor in response to the Sale Notice, which in no event shall be less than 10
or more than 60 days from the date of such notice. In the event that the
Company does not elect to purchase all the offered Securities, the Management
Investor may, subject to the other provisions of this Agreement, Transfer the
remaining offered Securities to the offeree specified in the Sale Notice at a
price no less than the price specified in the Sale Notice and on other terms no
more favorable to the transferee(s) thereof than specified in the Sale Notice
during the 180-day period immediately following the last date on which the
Company could have elected to purchase the offered Securities. Any such
Securities not transferred within such 180-day period will be subject to the
provisions of this Section 6.3(b) upon subsequent Transfer.
6.4. Involuntary Transfers. In the event that the Securities owned
by any Management Investor shall be subject to sale or other Transfer (the date
of such sale or transfer shall hereinafter be referred to as the "Transfer
Date") on or prior to July 29, 1999 as to the Original Management Investors, and
the Third Anniversary as to the New Management Investors, by reason of (i)
bankruptcy or insolvency proceedings, whether voluntary or involuntary, or (ii)
distraint, levy, execution or other involuntary Transfer, then such Management
Investor shall give the Company written notice thereof promptly upon the
occurrence of such event stating the terms of such proposed Transfer, the
identity of the proposed transferee, the price or other consideration, if
readily determinable, for which the Securities are proposed to be transferred,
and the number of shares of Common Stock to be transferred. After its receipt
of such notice or, failing such receipt, after the Company otherwise obtains
actual knowledge of such a proposed Transfer, the Company, or a designee
selected by a majority of the non-employee members of the Board of Directors of
the Company, shall have the right and option to purchase all, but not less than
all of such Securities which right shall be exercised by written notice given by
the Company to such proposed transferor within 60 days following the Company's
receipt of such notice or, failing such receipt, the Company's obtaining actual
knowledge of such proposed Transfer. Any purchase pursuant to this Section 6.4
shall be at the price and on the terms applicable to such proposed Transfer. If
the nature of the event giving rise to such involuntary Transfer is such that no
readily determinable consideration is to be paid for the Transfer of the
Securities, the price to be paid by the Company shall be the Option Purchase
Price that would have been applicable hereunder had the Management Investor
incurred a Termination Date as of the date of such proposed Transfer for the
Securities. The closing of the purchase and sale of Securities shall be held at
the place and the date to be established by the Company, which in no event shall
be less than 10 or more than 60 days from the date on which the Company gives
notice of its election to purchase the Securities. At such closing, the
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Management Investor shall deliver the certificates evidencing the number of
shares of Common Stock to be purchased by the Company, accompanied by stock
powers duly endorsed in blank or duly executed instruments of transfer, and any
other documents that are necessary to transfer to the Company good title to such
of the Securities to be transferred, free and clear of all pledges, security
interests, liens, charges, encumbrances, equities, claims and options of
whatever nature other than those imposed under this Agreement, and concurrently
with such delivery, the Company shall deliver to the Management Investor the
full amount of the purchase price for such Securities in cash by certified or
bank cashier's check.
6.5. [Intentionally omitted]
6.6. Purchaser Representative. If the Company or any Investor
enters into any negotiation or transaction for which Rule 506 (or any similar
rule then in effect) promulgated by the Securities and Exchange Commission under
the Securities Act may be available with respect to such negotiation or
transaction (including a merger, consolidation or other reorganization), each
Management Investor will, at the request of the Company, appoint a purchaser
representative (as such term is defined in Rule 501(h) promulgated by the
Securities and Exchange Commission under the Securities Act) reasonably
acceptable to the Company. If any Management Investor appoints the purchaser
representative designated by the Company, the Company will pay the fees of such
purchaser representative, but if any Management Investor declines to appoint the
purchaser representative designated by the Company such Management Investor will
appoint another purchaser representative (reasonably acceptable to the Company),
and such Management Investor will be responsible for the fees of the purchaser
representative so appointed.
6.7. [Intentionally omitted]
ARTICLE VII
REGISTRATION RIGHTS
The Investors shall have registration rights with respect to the
Shares as set forth in the Registration Rights Agreement attached hereto as
Exhibit B. Each of the Investors agree not to effect any public sale or
distribution of any securities of the Company during the periods specified in
the Registration Rights Agreement, except as permitted by the Registration
Rights Agreement, and each such Investor agrees to be bound by the rights of
priority to participate in offerings as set forth therein.
ARTICLE VIII
MISCELLANEOUS
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8.1. Amendment and Modification. This Agreement may be amended or
modified, or any provision hereof may be waived, provided that such amendment or
waiver is set forth in a writing executed by (i) the Company, (ii) CVC (so long
as CVC and its Affiliates own in the aggregate at least 25% of the outstanding
Common Stock on a fully diluted basis) and (iii) the holders of a majority of
the outstanding Common Stock on a fully diluted basis (including Shares owned by
CVC and its Affiliates); provided, however that the provisions of this Agreement
which are for the express benefit of Masco cannot be amended, modified or
waived, unless Masco also executes such amendment or waiver. No course of
dealing between or among any persons having any interest in this Agreement will
be deemed effective to modify, amend or discharge any part of this Agreement or
any rights or obligations of any person under or by reason of this Agreement.
8.2. Survival of Representatives and Warranties. All
representations, warranties, covenants and agreements set forth in this
Agreement will survive the execution and delivery of this Agreement, regardless
of any investigation made by an Investor or on its behalf.
8.3. Successors and Assigns; Entire Agreement. This Agreement and
all of the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns and
executors, administrators and heirs. This Agreement sets forth the entire
agreement and understanding among the parties as to the subject matter hereof
and merges and supersedes all prior discussions and understandings of any and
every nature among them.
8.4. Separability. In the event that any provision of this
Agreement or the application of any provision hereof is declared to be illegal,
invalid or otherwise unenforceable by a court of competent jurisdiction, the
remainder of this Agreement shall not be affected except to the extent necessary
to delete such illegal, invalid or unenforceable provision unless that provision
held invalid shall substantially impair the benefits of the remaining portions
of this Agreement.
8.5. Notices. All notices provided for or permitted hereunder
shall be made in writing by hand-delivery, registered or certified first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery to the
other party at the following addresses (or at such other address as shall be
given in writing by any party to the others):
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If to the Company to:
Delco Remy International, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, President
If to CVC, to:
Citicorp Venture Capital Ltd.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Xx., President
with a required copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx XX 00000
Attention: G. Xxxxxx X'Xxxxxxx, Esquire
If to WEP, to:
World Equity Partners, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
with a required copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, Esquire
If to Masco, to:
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MascoTech Automotive Systems Group, Inc.
000 Xxx Xxxxxxxxx
Xxxxxx Xxxxx, XX 00000
Attention: X. X. Xxxxxx
with a required copy to:
Masco Corporation
00000 Xxx Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: General Counsel
If to Xxxxxxxx, to:
Xxxxxx X. Xxxxxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
If to Xxxxxxx, to:
Xxxxx X. Xxxxxxx
00000 Xxxxx Xxxxx Xxxx Xxxxx - #00
Xxxxxxxxxx, XX 00000
If to the Other Investors or Management Investors or any of them, to
their addresses as listed in the books of the Company.
All such notices shall be deemed to have been duly given: when
delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next business day,
if timely delivered to an air courier guaranteeing overnight delivery.
8.6. Governing Law. The validity, performance, construction and
effect of this Agreement shall be governed by and construed in accordance with
the internal law of Delaware, without giving effect to principles of conflicts
of law.
8.7. Headings. The headings in this Agreement are for convenience
of reference only and shall not constitute a part of this Agreement, nor shall
they affect their meaning, construction or effect.
8.8. Counterparts. This Agreement may be executed in two or more
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counterparts and by the 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 instrument.
8.9. Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
8.10. Termination. Unless sooner terminated in accordance with its
terms, this Agreement shall terminate on July 29, 2004.
8.11. Remedies. In the event of a breach or a threatened breach by
any party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The
parties agree that the provisions of this Agreement shall be specifically
enforceable, it being agreed by the parties that the remedy at law, including
monetary damages, for breach of such provision will be inadequate compensation
for any loss and that any defense in any action for specific performance that a
remedy at law would be adequate is waived.
8.12. Party No Longer Owning Securities. If a party hereto ceases
to own any Securities, such party will no longer be deemed to be an Investor or
Management Investor for purposes of this Agreement.
8.13. No Effect on Employment. Nothing herein contained shall
confer on any Management Investor the right to remain in the employ of the
Company or any of its subsidiaries or Affiliates.
8.14. Pronouns. Whenever the context may require, any pronouns used
herein shall be deemed also to include the corresponding neuter, masculine or
feminine forms.
8.15. Effectiveness of Agreement. This Amended and Restated
Securities Purchase and Holders Agreement will become effective upon receipt of
the approvals of the stockholders as required by Section 8.1 hereto and upon the
closing date of the initial public offering ("IPO") of Class A Common Stock of
the Company. In the event the closing of the IPO has not occurred on or before
December 31, 1997, then this Agreement shall be null and void and of no further
force and effect and the Securities Purchase and Holders Agreement dated July
29, 1994 shall remain in effect and be binding upon the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Securities
Purchase and Holders Agreement the day and year first above written.
DELCO REMY INTERNATIONAL, INC.
By:
Its:
CITICORP VENTURE CAPITAL LTD.
By: /s/Xxxxxxx X. Xxxxxxx
Its:
WORLD EQUITY PARTNERS, L.P.
By: /s/Xxxxxxx Xxxxxxxx
Its:
____________________________ /s/Xxxxxxx Xxxxxxxx
Xxxxx X. Xxxxxxxxx Xxxxxxx Xxxxxxxx
/s/Xxxxxxx X. Xxxxxxx /s/Kilin To
Xxxxxxx X. Xxxxxxx Kilin To
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/s/Xxxxx Xxxxx /s/Xxxxx Xxxxxx
Xxxxx Xxxxx Xxxxx Xxxxxx
/s/Xxxxx Xxxxx /s/Xxxxx X. Xxxx
Xxxxx Xxxxx Xxxxx X. Xxxx
___________________________ /s/Xxxxxx Xxxxxx
Xxxxxx XxXxxxxxxx Xxxxxx Xxxxxx
/s/Xxxxxx X. Xxxxxx, XX /s/Xxxxxx Xxxxxxxxxxx
Xxxxxx X. Xxxxxx, XX Xxxxxx Xxxxxxxxxxx
/s/Xxxxxx Xxxxxxxxx /s/Xxxxx Xxxx
Xxxxxx Xxxxxxxxx Xxxxx Xxxx
___________________________ ______________________________
Xxxxx X. Xxxx Xxxx Xxxxxxxx
___________________________ ______________________________
Xxxxx X. Xxxxxxx Xxxxxx Xxxxxxxx
/s/Xxxxxx X. Xxxxxx ____________________________
Xxxxxx X. Xxxxxx Xxxx X. Xxxxxxx
___________________________ /s/Xxxxx Xxxxx
Xxxx X. Xxxxxx, Xx. Xxxxx Xxxxx
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/s/Xxxx X. Newport /s/Xxxx Xxxxxxxx
Xxxx X. Newport Xxxx Xxxxxxxx
/s/M. Xxxxxxxx Xxxxxx /s/Xxxxxxx X. Xxxxxx, Xx.
M. Xxxxxxxx Xxxxxx Xxxxxxx X. Xxxxxx, Xx.
/s/Xxxxxxx X. Xxxxxxx /s/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx
/s/Xxxxxxxx English ______________________________
Xxxxxxxx English Xxxxx X. Xxxxxxxx
___________________________ ______________________________
Xxxxxxx X. Xxxxxxxx Xxxxx Xxxxxx
/s/Xxxxx X. Xxxxx /s/Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx Xxxxxx X. Xxxxxxx
___________________________ /s/Xxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxxxx
/s/Xxxxx X. Xxxxx /s/Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx
___________________________ ______________________________
Xxxxxxx X. Xxxxx Xxxxx X. Xxxxx
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___________________________ /s/Xxxx Xxxxxx
Xxx X. Xxxxx Xxxx Xxxxxx
/s/Xxxxxxx Xxxxxxx /s/Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx Xxxxxx X. Xxxxxxx
/s/Xxxx Xxxxxxx /s/Xxxxx X. Xxxxxxx
Xxxx Xxxxxxx Xxxxx X. Xxxxxxx
/s/Xxxxxx Xxxxxxxxx /s/Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxxxx Xxxxxx X. Xxxxxxx
/s/Xxxx Xxxxxxx /s/Xxxxx Xxxxxxxxx
Xxxx Xxxxxxx Xxxxx Xxxxxxxxx
___________________________ /s/Xxxxx Xxxxxxxx
Xxxxx X. Xxxxxxx Xxxxx Xxxxxxxx
/s/Xxxxxxx X. Xxxx /s/Xxxxxx Xxxxxxxx
Xxxxxxx X. Xxxx Xxxxxx Xxxxxxxx
/s/Xxxxxx X. XxXxxxxx ______________________________
Xxxxxx X. XxXxxxxx Xxxxxx Xxxxxx
___________________________ /s/Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxx Xxxxx Xxxxxx
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/s/Xxxxxxx X. Xxxxx /s/Xxxxx Xxxxxx
Xxxxxxx X. Xxxxx Xxxxx Xxxxxx
/s/Xxxxxx X. Xxxxxx /s/Xxxxxxx Xxxxxx
Xxxxxx X. Xxxxxx Xxxxxxx Xxxxxx
/s/Xxxxxxx X. Xxxxxx /s/Xxxx Xxxxxxx
Xxxxxxx X. Xxxxxx Xxxx Xxxxxxx
/s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
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___________________________ ______________________________
Xxxxxxx X. Xxxxx, as Trustee Xxx X. Xxxxx, as Trustee
under the Xxxxxxx Xxxxx Living under the Xxx X. Xxxxx Living
Trust, dated September 19, 1990 Trust, dated September 19, 1990
___________________________ ______________________________
Xxxxxx X. Xxxxxxxx, Trustee Xxxxx X. Xxxxxxx, Trustee under
under Agreement dated Living Trust dated March 16, 1990
February 4, 1985, as amended,
with Xxxxx Xxxxxxxx, as Settlor
MASCOTECH AUTOMOTIVE THE BILLIG FAMILY
SYSTEMS GROUP, INC. LIMITED PARTNERSHIP
By: _______________________________ By: ___________________________
Name: Name:
Title: Title:
63 BR PARTNERSHIP CITICORP VENTURE CAPITAL LTD.
By: _______________________________ By: _____________________________
Name: Name:
Title: Title:
CCT PARTNERS I, L.P. DAISY FARM LIMITED PARTNERSHIP
By: _______________________________ By: ______________________________
Name: Name:
Title: Title:
-22-
