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Exhibit 10.21
SHAREHOLDERS' AGREEMENT
between
NAR HOLDING CORPORATION
and
XXXXXXX X. XXXXXX
July 15, 1987
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SHAREHOLDERS' AGREEMENT
This AGREEMENT is made and entered into this 15th day of July, 1987, by
and between NAR HOLDING CORPORATION ("NAR Holding"), a Delaware corporation
having its principal executive office at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx, and XXXXXXX X. XXXXXX ("Armini"), an individual residing at 00
Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx, with reference to the following facts:
WHEREAS, NAR Holding and Surface Alloys Corporation ("Surface Alloys"),
a Massachusetts corporation, have entered into that certain Subscription
Agreement (the "Subscription Agreement"), dated July 8, 1987, for the issuance
and sale by Surface Alloys, and the purchase by NAR Holding, of 50,000 shares of
the voting common stock of Surface Alloys upon the terms and conditions set
forth therein;
WHEREAS, Armini is the owner, beneficially and of record, of 200,000
shares of the issued and outstanding voting common stock of Surface Alloys; and
WHEREAS, NAR Holding and Armini desire to enter into a shareholders'
agreement to provide for the election of the directors of Surface Alloys and
certain other matters.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, covenants, representations and warranties set forth herein, the
parties hereto agree as follows:
1. Ownership of Shares. Following the consummation of the transactions
contemplated by the Subscription Agreement, Armini and NAR Holding severally
represent and warrant that they are or will be the owners, beneficially and of
record, of the number of shares of the issued and outstanding voting common
stock of Surface Alloys set forth opposite their names below, and that such
shares are or will be respectively owned by them free and clear of all liens,
encumbrances, security agreements, voting trust agreements, shareholders'
agreements, options, claims, contracts, restrictions or understandings, and that
they have or will have full power to vote all of their respective shares in the
manner provided herein.
Name Number of Shares
---- ----------------
Armini 200,000
NAR Holding 50,000
2. Board of Directors. The parties hereby agree that so long as the
Board of Directors (the "Board") of Surface Alloys shall consist of five (5)
members or less and NAR Holding or any of its affiliates (as defined in Section
4) shall own any shares, NAR Holding and such affiliates (collectively, the "NAR
Group") shall be entitled to name, and to have elected, a minimum of one
director to such Board as their representative. The parties further agree that,
during the term of this Agreement, the authorized number of directors shall not
exceed five (5) members, and that they will not vote, or permit their respective
shares to be voted, in favor of any amendment of the Bylaws or any other
corporate action that would increase the authorized number of directors, except
as may be necessary in accordance with this section. In the event that the
percentage of outstanding shares held in the aggregate by the NAR Group should
for any reason exceed twenty percent (20%), it shall be entitled to name and to
have elected one additional director for each additional twenty (20%) percent of
the outstanding shares of Surface Alloys owned by the NAR Group. Any such
increase in the NAR Group's representation on the Board shall be effective as of
the next annual or special meeting of the shareholders for the election of a
director or directors.
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3. Voting of Shares. During the term of this Agreement, Armini shall
vote all of the shares then owned by him for the nomination and election as a
director of Surface Alloys the person or persons designated by the NAR Group in
accordance herewith for election to the Board. In the event that any director
designated by the NAR Group should cease to be a director for any reason prior
to the expiration of his term, Armini shall vote all of his shares for the
nomination and election of another person designated by the NAR Group to fill
such vacancy.
4. Restrictions on Transfer. The parties hereby agree that none of the
shares respectively held by them may be sold, transferred, gifted or otherwise
conveyed to any other person or entity without the prior written consent, which
shall not be unreasonably withheld, of the non-transferring party, provided,
however, that: (i) Armini may sell, transfer or convey any or all of his shares
to any member of his immediate family, and (ii) NAR Holding may sell, transfer
or convey any or all of its shares to any "affiliate," which for purposes of
this Agreement shall mean any person or entity directly or indirectly
controlling, controlled by, or under common control with NAR Holding.
Notwithstanding the foregoing, no sale, transfer or conveyance of any shares by
either party shall be permitted hereunder, unless the nontransferring party
shall have received a written instrument, in form and substance reasonably
satisfactory to it, duly executed and delivered by the proposed transferee and
which shall obligate such transferee to perform and observe all of the terms and
conditions of this Agreement.
5. Additional Covenants. Armini hereby covenants and agrees that he
will not vote, nor permit his shares to be voted, in favor of any amendment of
the Articles of Incorporation or Bylaws of Surface Alloys or in favor of any
other corporate action: (i) that would adversely affect during the term of this
Agreement the NAR Group's right of representation on the Board of Surface
Alloys, as contemplated hereunder, or (ii) that would adversely affect the
Pre-Emptive Right granted pursuant to the Subscription Agreement by Surface
Alloys to NAR Holding (including its affiliates to the extent permitted
thereunder) during the term of such Pre-Emptive Right.
6. Legend. The following legend shall be noted conspicuously on all
certificates representing the shares subject to this Agreement:
The shares of common stock represented by this certificate are subject
to restrictions on voting and transfer, as provided in the
Shareholders' Agreement, dated July 15, 1987, by and between NAR
Holding Corporation, a Delaware corporation, and Xxxxxxx X. Xxxxxx, an
individual, a copy of which is on file with the Clerk of Surface Alloys
Corporation.
7. Stock Dividends. The terms and conditions of this Agreement shall
apply to any shares of capital stock or other securities distributed by Surface
Alloys as a dividend in respect of the shares of common stock held by the
parties hereto and their respective transferees.
8. Term and Termination. The term of this Agreement shall commence on
the date hereof and shall continue until terminated by the earliest to occur of
any one of the following events: (i) the mutual consent of the parties evidenced
by a written instrument signed by them, (ii) a public offering of shares of the
voting common stock of Surface Alloys, or (iii) the NAR Group shall in the
aggregate cease to own at least ten percent (10%) of the outstanding voting
common stock of Surface Alloys.
9. Further Actions. The parties agree, at his or its own expense, to
take such other actions and to execute and deliver such other instruments and
documents, upon the request of the other party, as may be reasonably necessary
to effectuate the purposes of this Agreement.
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10. Equitable Relief. The parties agree that any breach of the
provisions of this Agreement could not be adequately compensated by money
damages, and that the nonbreaching party shall be entitled, in addition to any
other right or remedy available to him or it at law or in equity, to specific
performance of this Agreement and to any other injunctive or equitable relief as
may be determined by any court of competent jurisdiction.
11. Corporate Records. A copy of this Agreement shall be filed with the
Secretary of Surface Alloys, and shall be inserted in the minute book of the
corporation.
12. No Third Party Beneficiaries. Nothing express or implied herein is
intended to confer, or shall be construed as conferring, upon any person other
than the parties hereto and their permitted transferees any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
13. Notices. All notices and other communications required to be given
under this Agreement shall be in writing, and shall be deemed to have been duly
given on the date of service if served personally, on the date of transmission
if sent by telex, facsimile or other form of electronic communication, or on the
date of mailing if mailed by certified or registered mail, postage prepaid and
properly addressed. All notices and other communications shall be addressed to
the parties as follows:
NAR Holding Corporation
c/o Takata Corporation
00-0 Xxxxxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx 000, Xxxxx
Attention: Xx. Xxxxx Xxxxxxx
With a copy to:
Xxxxxx & Xxxxx
000 Xxxxx Xxxxxxxx Xx., Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000, X.X.X.
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000, X.X.X.
With a copy to:
X'Xxxxxx, Xxxxxx & Xxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxxxxx 00000, X.X.X.
Attention: Xxxx X. Xxxxxx, Esq.
14. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, transferees,
heirs, and personal representatives.
15. Effect of Headings. The subject headings of the sections of this
Agreement are included for purposes of convenience only, and shall not affect
the construction or interpretation of any of its provisions.
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16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement, and
supersedes all prior and contemporaneous agreements, representations and
understandings of the parties, whether written or oral.
17. Modification; Waiver. No modification or amendment of this
Agreement shall be binding unless executed in writing by both parties. No waiver
of any provision of this Agreement shall be deemed, or shall constitute, a
waiver of any other provision, whether or not similar, nor shall any waiver in
one instance constitute a continuing waiver or be deemed a waiver in any other
insurance. No waiver shall be binding unless executed in writing by the party to
be charged with the waiver.
18. Severability. If any provision of this Agreement shall be held to
be invalid, illegal or unenforceable, the remaining provisions shall not be
affected thereby and shall continue in full force and effect.
19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together be one and the same instrument.
20. Arbitration. Any dispute or controversy arising out of or relating
to this Agreement shall be decided by arbitration in the City of New York, State
of New York by the American Arbitration Association (the "Association") in
accordance with the Commercial Arbitration Rules of the Association. The parties
hereby agree that any award by the Association shall be final and binding, and
may be enforced by any court of competent jurisdiction.
21. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first above written.
NAR HOLDING CORPORATION,
a Delaware corporation
By:/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, Director
XXXXXXX X. XXXXXX,
an individual
/s/ Xxxxxxx X. Xxxxxx
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