REIMBURSEMENT AGREEMENT
Exhibit 10.1
THIS REIMBURSEMENT AGREEMENT, dated as of October 28, 2009 (the “Agreement”), is entered into
by and between Tecumseh Products Company, a Michigan corporation (the “Company”), and Xxxxxxx
Foundation, a Michigan nonprofit corporation (the “Foundation”).
WHEREAS,
the Company and the Foundation, a significant shareholder of the
Company, engaged in
a proxy contest (the “Proxy Contest”) in 2009 related to the election of certain directors to the
Company’s board of directors (the “Board”) and, as determined by the votes cast at the 2009 annual
shareholders’ meeting held on August 14, 2009, the Foundation won the Proxy Contest;
WHEREAS, the Proxy Contest involved disparate views over corporate policy;
WHEREAS,
the Proxy Contest and the election of the Foundation’s slate of directors to the
Board conferred a benefit upon the Company;
WHEREAS,
the Foundation has requested that the Company reimburse the Foundation its
reasonable costs and expenses incurred in connection with the Proxy Contest and the Foundation’s
proxy statement advised the shareholders that the Foundation
intended to seek reimbursement from
the Company of such expenses if successful without further shareholder approval;
WHEREAS,
the Audit Committee of the Company, acting upon a proper delegation from the Board,
has determined to reimburse the Foundation its reasonable expenses in
the amount of $1,121,947.22
(the “Reimbursement”) subject to the terms and conditions of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and intending to be legally bound hereby, the
parties hereto agree as follows:
1.1 Representations and Warranties of the Foundation. The Foundation represents and warrants
to the Company that this Agreement has been duly authorized, executed and delivered by the
Foundation, and is a valid and binding obligation of the Foundation, enforceable against the
Foundation in accordance with its terms.
1.2. Representations and Warranties of the Company. The Company represents and warrants to
the Foundation that this Agreement has been duly authorized, executed and delivered by the
Company, and is a valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
2.1 The Company’s Covenants. Within 10 business days from the date of execution of this
Agreement by both parties, the Company shall tender and deliver to
the Foundation the sum of $l,121,947.22.
2.2.
The Foundation’s Covenants. If a final non-appealable judgment, issued by a court of
competent jurisdiction, is entered stating that any or all of the Reimbursement by the Company
pursuant to this Agreement was improperly tendered to the Foundation, the Foundation agrees to
repay to the Company the amount of the Reimbursement deemed improperly tendered. Notwithstanding
any other provision of this Agreement, the Foundation’s obligations under this paragraph 2.2 shall
be limited solely to any such amount of the Reimbursement deemed to have been improperly tendered
by the Company to the Foundation, and shall not include any attorney, expert or other fees, costs,
or expenditures of any nature related to any challenge to or defense of the Reimbursement.
3.1 The Company’s Releases. The Company, on behalf of itself, its directors, officers,
employees, representatives and agents (collectively, the “Company Releasors”), does hereby, fully
and forever, release and discharge the Foundation and its attorneys, employees, representatives and
agents (collectively, the “Foundation Releasees”) from any and all actions, claims, complaints,
rights or causes of action, debts, demands or suits of any kind or nature whatsoever, statutory,
equitable or legal, foreseen or unforeseen, known or unknown, matured or unmatured that the Company
Releasors have, may have or might claim to have against the Foundation Releasees through the date
hereof related to or arising out of the matters listed on Schedule A to this Agreement;
provided, however, that nothing herein shall release any claims that the Company Releasors
hereafter may have against the Foundation Releasees arising from this Agreement.
3.2. The Foundation’s Releases. The Foundation, on behalf of itself, its employees,
representatives and agents (collectively, the “Foundation
Releasors”), does hereby, fully and
forever, release and discharge the Company, its directors, officers, employees, attorneys,
representatives and agents (collectively, the “Company Releasees”) from any and all actions,
claims, complaints, rights or causes of action, debts, demands or suits of any kind or nature
whatsoever, statutory, equitable or legal, foreseen or unforeseen, known or unknown, matured or
unmatured that the Foundation Releasors have, may have or might claim to have against the Company
Releasees through the date hereof related to or arising out of the matters listed on Schedule
A to this Agreement; provided, however, that nothing herein shall release any claims
that the Foundation Releasors hereafter may have against the Company Releasees arising from this
Agreement.
4.1 Specific Performance. The Foundation, on the one hand, and the Company, on the other
hand, acknowledges and agrees that irreparable injury to the other party hereto would occur in the
event any of the provisions of this Agreement were not performed in
accordance with their specific
terms or were otherwise breached and that such injury would not be adequately compensable in
damages. It is accordingly agreed that the Foundation, on the one hand, and the Company, on the
other hand, shall each be entitled to specific enforcement of, and injunctive relief to prevent
any violation of, the terms hereof and the other party hereto will not take action, directly or
indirectly, in opposition to the party seeking such relief on the grounds that any other remedy or
relief is available at law or in equity.
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5.1 Jurisdiction; Applicable Law. THE PARTIES TO THIS AGREEMENT HEREBY CONSENT TO THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN OR A MICHIGAN
STATE COURT OF COMPETENT JURISDICTION AND IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS. EACH PARTY (A) CONSENTS TO
SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF SUCH COURTS FOR SUCH ACTIONS OR PROCEEDINGS, (B)
AGREES THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER
REQUEST FOR LEAVE FROM ANY SUCH COURT, AND (C) AGREES THAT IT WILL NOT BRING ANY SUCH ACTION OR
PROCEEDING IN ANY COURT OTHER THAN SUCH COURTS. EACH PARTY ACCEPTS FOR ITSELF, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE AND IRREVOCABLE JURISDICTION AND VENUE OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY
NON-APPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH ACTIONS OR PROCEEDINGS. A COPY OF
ANY SERVICE OF PROCESS SERVED UPON THE PARTIES SHALL BE MAILED BY REGISTERED MAIL TO THE RESPECTIVE
PARTY EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL
NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY A PARTY REFUSES TO ACCEPT
SERVICE, EACH PARTY AGREES THAT SERVICE UPON THE APPROPRIATE PARTY BY REGISTERED MAIL SHALL
CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF A PARTY TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. EACH PARTY ALSO WAIVES
ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF ANY
OF THE OTHER PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND
EFFECT, BY THE LAWS OF THE STATE OF MICHIGAN APPLICABLE TO CONTRACTS EXECUTED AND TO BE
PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH
STATE.
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6.1 Notices. All notices, requests and other communications to any party hereunder will be in
writing (including prepaid overnight courier, facsimile transmission or similar writing) and shall
be addressed as follows:
If to Tecumseh Products Company:
with a copy to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
If
to Xxxxxxx Foundation:
Xxxxxxx Foundation
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
With a copy to:
Barris,
Sott, Denn & Driker, P.L.L.C.
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
7.1 Severability. If at any time subsequent to the date hereof; any provision of this
Agreement shall be held by any court of competent jurisdiction to be illegal, void or
unenforceable, such provision shall be of no force and effect, but the illegality or
unenforceability of such provision shall have no effect upon the legality or enforceability of any
other provision of this Agreement, as long as the parties’ respective rights and obligations are
not significantly effected thereby.
8.1 Further Assurances. The parties hereto agree to execute such further documents and
instruments and to take such further actions as may be reasonably necessary to carry out the
purposes and intent of this Agreement.
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9.1 Counterparts, Facsimile/PDF Signatures. This Agreement may be executed in one or more
counterparts each of which when so executed and delivered will be deemed an original but all of
which will constitute one and the same Agreement. This Agreement may be executed and delivered
by facsimile or by email in portable document format (.pdf or similar format) and upon delivery
of the signature by such method will be deemed to have the same effect as if the original
signature had been delivered to the other parties.
10.1 Construction of this Agreement. The parties acknowledge that each party was
represented by legal counsel (or had the opportunity to be represented by legal counsel) in
connection with this Agreement, and that each of them and their counsel have reviewed and
revised this Agreement, or have had an opportunity to do so, and that any rule of construction
to the effect that ambiguities are to be resolved against the drafting party shall not be
employed in their interpretation of this Agreement or any amendments or any exhibits hereto or
thereto.
11.1 Entire Agreement; Amendment. This Agreement contains the entire understanding of the
parties hereto with respect to its subject matter and supersedes all prior agreements between
the parties hereto. This Agreement may be amended only by a written instrument duly executed by
the parties hereto, or their respective successors or assigns. Except as provided herein, this
Agreement will be binding upon and inure to the benefit of the parties and successors and
permitted assigns. Nothing expressed or implied herein is intended or will be construed to
confer upon or to give to any third party any rights or remedies by virtue hereof.
Agreed and Accepted this
29 day of October, 2009.
| TECUMSEH PRODUCTS COMPANY |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Director | |||
| By: | ||||
| Name: | Xxxxxx X. Lebowski | |||
| Title: | Director | |||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| XXXXXXX FOUNDATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Secretary and Trustee | |||
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9.1 Counterparts, Facsimile/PDF Signatures. This Agreement may be executed in one or more
counterparts each of which when so executed and delivered will be deemed an original but all of
which will constitute one and the same Agreement. This Agreement may be executed and delivered
by facsimile or by email in portable document format (.pdf or similar format) and upon delivery
of the signature by such method will be deemed to have the same effect as if the original
signature had been delivered to the other parties.
10.1 Construction of this Agreement. The parties acknowledge that each party was
represented by legal counsel (or had the opportunity to be represented by legal counsel) in
connection with this Agreement, and that each of them and their counsel have reviewed and
revised this Agreement, or have had an opportunity to do so, and that any rule of construction
to the effect that ambiguities are to be resolved against the drafting party shall not be
employed in their interpretation of this Agreement or any amendments or any exhibits hereto or
thereto.
11.1 Entire Agreement; Amendment. This Agreement contains the entire understanding of the
parties hereto with respect to its subject matter and supersedes all prior agreements between the
parties hereto. This Agreement may be amended only by a written instrument duly executed by the
parties hereto, or their respective successors or assigns. Except as provided herein, this
Agreement will be binding upon and inure to the benefit of the parties and successors and
permitted assigns. Nothing expressed or implied herein is intended or will be construed to confer
upon or to give to any third party any rights or remedies by virtue hereof.
Agreed and Accepted this
29 day of October, 2009.
| TECUMSEH PRODUCTS COMPANY |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxxxx X. Lebowski | |||
| Name: | Xxxxxx X. Lebowski | |||
| Title: | Director | |||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| XXXXXXX FOUNDATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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SCHEDULE A
1. Option Granted to Tricap Partners II, L.P. In November 2006, the Foundation granted to Tricap
Partners II, L.P. (“Tripcap”) an option to purchase shares of Class B and Class A Stock of the
Company in exchange for Tricap’s making a $100,000,000 Second Lien Credit Agreement available to
the Company. On September 25, 2008, Tricap exercised its option to purchase 500,000 shares of Class
B Stock from the Foundation at $16.00 a share, which was lower than the market price of the Class B
Stock at that time.
2. The 2007 Lawsuits. In February 2007, the Foundation notified the Company that it intended to
nominate Xxxx Xxxxxxx and two new directors for election as a majority on the board at the 2007
annual meeting of shareholders. The Company responded by increasing the size of the board so that
the Foundation’s nominees, if elected, would represent a minority. On March 6, 2007, in response
to the Company’s action, Xxxx Xxxxxxx and the Foundation filed a lawsuit against Xxxxxx X. Xxxx,
Xxxxx X. Xxxxx, Xxxxx X. Xxxxxx (collectively, the “Director Defendants”) and the Company
in the Lenawee County Circuit Court (the “Xxxxxxx Lawsuit”). The court directed the Company
either to allow the Foundation to nominate another director or to return the board to its former
size so that the Foundation’s nominees would still constitute a majority of the board.
The Company and the Foundation ultimately settled the Xxxxxxx Lawsuit, as well as a related
lawsuit filed by the Company, captioned Tecumseh Products Company v. Xxxx Xxxxxxx et al.,
Case Xx. 0:00-xx-00000, Xxxxxx Xxxxxx Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxxx of Michigan, Southern
Division. Pursuant to the settlement agreement, among other things: (1) Xxxx Xxxxxxx resigned from
the board and the board appointed Xxxx Xxxxxxx to fill the vacancy (2) new directors were
appointed, including Xxxxx X. Xxxxx and Xxxxxx X. Lebowski, the latter of which was a Foundation
nominee, (3) Xxxxx X. Xxxxx was appointed president and chief executive officer and (4) Xxxxx X.
Xxxxxxx ceased to be the interim president and chief operating officer. As a minority on the board,
Xxxx Xxxxxxx and Xxxxxx Lewbowski agreed to exercise their voting rights in a manner consistent
with the terms of the settlement agreement through the 2008 annual meeting of shareholders, which
was held April 30, 2008.
3. 2008 Special Meeting. In 2008, the Company amended its bylaws to raise the percentage of shares
needed to call a special meeting of shareholders from 50% to 75%, which prompted the Foundation to
file suit in the Lenawee County Circuit Court (the “Special Meeting Lawsuit”) challenging
the Company’s action. The Special Meeting Lawsuit asked the court, among other things, to
invalidate the bylaw amendment and require the Company to hold a special meeting of its
shareholders, at which the Foundation would seek to remove Xxxxx X. Xxxxx and Xxxxx X. Xxxxxx from
the board. The court ordered the Company to hold a special meeting on November 21, 2008, at which
time the shareholders voted to keep Xxxxx Xxxxx and Xxxxx Xxxxxx as directors. On December 5, 2008,
the Company amended the special meeting threshold requirement in its bylaws back to 50%.
4. Stock Split. On December 5, 2008, the Company announced a stock split without requiring
shareholder approval. Pursuant to the stock split, two Class A shares would be issued for every
share of common stock outstanding, which would make Class B shares less than 10%
of all outstanding shares of the Company’s common stock. Due to a conversion provision in the
Charter, this effect would result in the automatic conversion of all outstanding Class A shares
into Class B shares. On December 8, 2008, the Foundation filed a lawsuit against the Company in the
Lenawee County Circuit Court (the “Stock Split Lawsuit”). The Stock Split Lawsuit asked the
court, among other things, to declare the stock split invalid and enjoin the Company from issuing
the stock split. On December 23, 2008, the court issued a preliminary injunction to enjoin the
stock split. Although the Company sought leave to appeal, the Michigan Court of Appeals denied the
Company’s application.
5. 2009 Proxy Fight. In conjunction with the Company’s 2009 annual meeting of the shareholders
held on August 14, 2009 (the “Annual Meeting”), the Foundation and the Company engaged in a
proxy contest in which each party sought to have its proposed slate of directors elected to the
Company’s board of directors. Based on the votes cast at the Annual Meeting, it was determined
that the Foundation’s slate of directors were elected by the shareholders to serve on the Company’s
board of directors.
