Exhibit 10.21
Execution Copy
PREFERRED STOCKHOLDERS AGREEMENT
PREFERRED STOCKHOLDERS AGREEMENT, dated March 14, 2001 (the
"Agreement"), by and among Court Square Capital Limited, a Delaware corporation
("Court Square"), World Equity Partners, L.P., a Delaware limited partnership
("WEP"), DRI Group LLC, a Delaware limited liability company ("DRI Group"), the
individuals listed on the signature pages hereto as "Continuing Investors" (the
"Continuing Investors"), the individuals listed on the signature pages hereto as
"Management Investors" and certain other Management Investors who are offered
the opportunity to join in this Agreement by Delco Remy International, Inc., a
Delaware corporation (the "Company"), and who execute a joinder to this
Agreement (the "Management Investors"). As used herein, Court Square, WEP and
DRI Group are sometimes referred to hereinafter individually as an
"Institutional Investor"; Court Square, WEP, DRI Group, the Continuing Investors
and the Management Investors are sometimes referred to hereinafter individually
as an "Investor" and collectively as the "Investors."
Background
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A. Court Square, DRI Acquisition LLC, a Delaware limited liability
company ("DLLC") and the Company are parties to an Agreement and Plan of Merger
dated as of February 7, 2001, as amended (the "Merger Agreement") pursuant to
which DLLC (or a successor corporation) will merge with and into the Company
(the "Merger") with the Company being the surviving corporation and the Company
will amend and restate its Certificate of Incorporation. The amended and
restated Certificate of Incorporation of the Company will provide for Class A
Common Stock, par value $.001 per share ("Class A Common Stock"), Class B Common
Stock, par value $.001 per share ("Class B Common Stock"), Class C Common Stock,
par value $.001 per share ("Class C Common Stock") and 12% Series A Cumulative
Preferred Stock, par value $.01 per share (the "Preferred Stock").
B. Pursuant to the Securities Transfer, Recapitalization and Holders
Agreement, dated as of even date herewith, among the Company, Court Square, WEP,
DRI Group, the Continuing Investors and the Management Investors (the
"Securities Transfer, Recapitalization and Holders Agreement"), (i) DRI Group,
the Continuing Investors and the Management Investors of the Company will have
exchanged certain shares of the Company's Class A Common Stock held by them
prior to the Merger for, and/or purchased, Class B Common Stock and Preferred
Stock, and (ii) Court Square will have exchanged certain shares of Class A
Common Stock and Class B Common Stock held by it prior to the Merger for Class B
Common Stock, Class C Common Stock and Preferred Stock. As a consequence of
these exchanges and purchases, Court Square, DRI Group, the Continuing Investors
and the Management Investors hold the number of shares of Preferred Stock set
forth opposite their respective names on Schedule III hereto. For purposes
hereof, the term "Common Stock" includes Class A Common Stock, Class B Common
Stock and Class C Common Stock and the term "Shares" includes the shares of the
Common Stock and the shares of Preferred Stock.
C. Pursuant to the Securities Transfer, Recapitalization and Holders
Agreement, WEP will have exchanged its existing warrant currently exercisable
for 1,680,000
shares of Class A Common Stock pursuant to a Warrant Agreement dated July 31,
1994 between the Company and WEP for a new warrant (the "Warrant") exercisable
for a certain number of shares of Class B Common Stock and Preferred Stock.
D. As used herein, the term "Securities" shall mean Preferred Stock
and the Warrant (including any shares of Preferred Stock to be issued upon
exercise thereof) held by any party hereto, including shares of the Preferred
Stock and all other securities of the Company (or a successor to the Company)
received on account of ownership of the Preferred Stock or the Warrant,
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.
E. Pursuant to the Securities Transfer, Recapitalization and Holders
Agreement, the Investors and the Company set forth certain agreements regarding
their future relationships and their rights and obligations with respect to the
Common Stock and the Preferred Stock.
F. The Investors wish to set forth herein certain additional
agreements regarding their future relationships and their rights and obligations
with respect to the Preferred Stock.
Terms
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In consideration of the mutual covenants contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
1.1. Tag-Along Rights.
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(a) After the Merger and on or after the "Tag-Along Date" (as
hereinafter defined), except as otherwise provided in Section 1.1(e), no
"Seller" (as hereinafter defined) shall sell any Preferred Stock in any
transaction or series of related transactions to any person or entity that is
not an Affiliate of such Seller unless all "Holders" (as hereinafter defined)
are offered an equal opportunity to participate in such transaction or
transactions on a pro rata basis (calculated based on the number of shares of
Preferred Stock of a Holder divided by the number of shares of Preferred Stock
held by all Investors and their Permitted Transferees) and on identical terms
(including price and type of consideration paid). If any Holder elects not to
participate in full or in part on a pro rata basis, the Seller may increase the
number of shares sold by it by the number of shares any such Holder elects not
include pursuant to the terms hereof. As used in this Section 1.1, "Tag-Along
Date" means, as to each Seller, the date on which such Seller and its Affiliates
own, or would own as a result of a sale of its Securities, less than 40% of the
outstanding Preferred Stock of the Company; "Seller" shall mean the
Institutional Investors and their respective Affiliates; and "Holders" shall
mean the Investors (other than the Sellers) and their Permitted Transferees.
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(b) Prior to any sale of Preferred Stock subject to these provisions,
the Seller shall, or shall request the Company to, notify the Holders in writing
of the proposed sale. Such notice (the "Seller's Notice") shall set forth: (i)
the number of shares of Preferred Stock subject to the proposed sale; (ii) the
name and address of the proposed purchaser; and (iii) the proposed amount of
consideration and terms and conditions of payment offered by such proposed
purchaser. A Holder may exercise the tag-along right by delivery of a written
notice (the "Tag-Along Notice") to the Seller within 15 days of the date the
Seller mailed or caused to be mailed the Seller's Notice. The Tag-Along Notice
shall state the number of shares of Preferred Stock that the Holder proposes to
include in the proposed sale. If no Tag-Along Notice is received during the 15-
day period referred to above, the Seller shall have the right for a 120-day
period to effect the proposed sale of shares of Preferred Stock on terms and
conditions no more favorable than those stated in the Tag-Along Notice and in
accordance with the provisions of this Section 1.1.
(c) Notwithstanding anything herein to the contrary in this
Agreement, a Seller may make any of the following sales without offering the
Holders the opportunity to participate: (i) sales by a Seller to any Permitted
Transferee; provided that the proposed purchaser agrees in writing to be bound
by the provisions of this Agreement and (ii) sales pursuant to Section 1.2
hereof. Any purported transfer or sale of any Securities shall be null and void
and of no force and effect and the purported transferee shall have no rights or
privileges in or with respect to the Company unless such transfer or sale is
permitted under this Agreement and under the Securities Transfer,
Recapitalization and Holders Agreement and such transferee agrees to execute a
joinder to this Agreement in the form attached hereto as Exhibit A.
(d) Each Investor acknowledges for itself and its transferees that
each Institutional Investor may grant in the future tag-along rights to other
holders of Preferred Stock and such holders will (i) have substantially the same
opportunity to participate in sales by such Institutional Investor as provided
to the parties hereto, and (ii) be included in the calculation of the pro rata
basis upon which Holders may participate in a sale.
(e) The tag-along obligations of Sellers and the rights of the
Holders with respect thereto provided under this Section 1.1 shall terminate
upon the earlier of (i) the consummation of a Public Offering (as defined
herein) and (ii) as to each Institutional Investor, the day after the date on
which such Institutional Investor and its Affiliates own less than 10% of the
Shares.
(f) (i) Notwithstanding the requirements of this Section 1.1, a
Seller may sell Preferred Stock as any time without complying with the
requirements of Section 1.1(b) so long as the Seller deposits into escrow with
an independent third party at the time of sale that amount of the consideration
received in the sale equal to the "Escrow Amount." The "Escrow Amount" shall
equal that amount of consideration as all the Holders would have been entitled
to receive if they had the opportunity to participate in the sale on a pro rata
basis, determined as if each Holder (A) delivered a Tag-Along Notice to the
Seller in the time period set forth in Section 1.1(b) and (B) proposed to
include all of its shares of Preferred Stock in the sale.
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(ii) No later than 5 business days after the date of the sale,
the Seller shall, or shall cause the Company to, notify the Holders in writing
of the sale. Such notice (the "Escrow Notice") shall set forth the information
required in the Seller's Notice, and in addition, such notice shall state the
name of the escrow agent and, if the consideration (in whole or in part) for the
sale was cash, then the account number of the escrow account.
(iii) A Holder may exercise the tag-along right by delivery to
the Seller, within 15 days of the date the Seller mailed or caused to be mailed
the Escrow Notice, of (A) a written notice specifying the number of shares of
Preferred Stock it proposes to sell, and (B) the certificates for such Preferred
Stock, with stock powers duly endorsed in blank.
(iv) Promptly after the expiration of the 15/th/ day after the
Seller has mailed or caused to be mailed the Escrow Notice, (A) the Seller shall
purchase that number of shares of Preferred Stock as Seller would have been
required to include in the sale had Seller complied with the provisions of
Section 1.1(b), (B) all shares of Preferred Stock not required to be purchased
by Seller shall be returned to the Holders thereof, and (C) all remaining funds
and other consideration held in escrow shall be released to Seller. If Seller
received consideration other than cash in its sale, Seller shall purchase the
shares of Preferred Stock tendered by paying to the Holders non-cash
consideration and cash in the same proportion as received by Seller in the sale.
(g) Each Holder that exercises it tag-along rights pursuant to this
Section 1.1 shall, at the request of Seller and without further cost and expense
to Seller, execute and deliver such other instruments of conveyance and
transfer, including any sales or indemnification agreements, and take such other
actions as may reasonably be requested to consummate the proposed sale of
Preferred Stock by Seller and the Holders which have exercised their tag-along
rights pursuant to this Section 1.1.
1.2. Take-Along Rights.
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(a) If the Board of Directors of the Company and the holders of at
least fifty percent (50%) of the outstanding Common Stock held by the Investors
and their Permitted Transferees approve the sale of the Company to a person
(whether by merger, consolidation, sale of all or substantially all of its
assets or sale of all or a majority of the outstanding capital stock) (an
"Approved Sale"), and if the Approved Sale is structured as a sale of stock,
each Investor and Permitted Transferee will agree to sell and will be permitted
to sell all of such Holder's Preferred Stock on the terms and conditions
approved by the Board of Directors and the holders of a majority of the Common
Stock then outstanding. Each Holder will take all necessary and desirable
actions in connection with the consummation of an Approved Sale.
(b) Each Holder shall, in connection with a sale of its Preferred
Stock pursuant to Section 1.2(a), at the request of Seller and without further
cost and expense to Seller, execute and deliver such other instruments of
conveyance and transfer and take such other actions as may reasonably be
requested to consummate the proposed sale of Preferred Stock by Seller and the
Holders pursuant to this Section 1.2. Each Investor and its Permitted
Transferees
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will bear their pro rata share (based upon the number of shares sold) of the
reasonable costs of any sale of its Preferred Stock pursuant to an Approved Sale
to the extent such costs are incurred directly in connection with such Approved
Sale and are not paid by the Company. Costs incurred by any Investor or its
Permitted Transferees on their own behalf will not be considered costs of the
transaction hereunder.
(c) The obligations of each of the Investors with respect to the
Approved Sale of the Company are subject to the satisfaction of the conditions
that: (i) upon the consummation of the Approved Sale, all of the Investors and
Permitted Transferees will receive the same form and amount of consideration per
share of Preferred Stock, or if any holder of Preferred Stock is given an option
as to the form and amount of consideration to be received, all Investors and
Permitted Transferees will be given the same option; and (ii) the terms of sale
shall not include any indemnification, guaranty or the similar undertaking of
the Investor (other than undertakings of Management Investors in respect of
continued employment) that (A) is not made or given pro rata with other
Investors on the basis of share ownership or (B) could result in liability to
such Investor that is in excess of the fair market value of the consideration to
be received by such Investor in the Approved Sale.
1.3. Purchaser Representative. In the event of any negotiation or
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transaction to which Section 1.1 or 1.2 of this Agreement may be applicable and
for which Rule 506 (or any similar rule then in effect) promulgated by the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act") may be available (including a merger, consolidation or
other reorganization), each Investor will, at the request of Court Square,
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 Court Square. Each Investor will be responsible for
the fees of the purchaser representative so appointed.
ARTICLE II
MISCELLANEOUS
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2.1. Definitions.
-----------
(a) "Affiliate" means, with respect to any person or entity, any
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other person or entity directly or indirectly controlling, controlled by or
under common control with such person or entity.
(b) "Permitted Transferee" means:
--------------------
(i) in the case of any Investor or Permitted Transferee who is,
in each case, 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
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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;
(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 Court Square or its Permitted Transferees,
(A) Court Square or any of its Affiliates, (B) any limited partnership, limited
liability company or other investment vehicle that is sponsored or managed
(whether through the ownership of securities having a majority of the of the
voting power, as a general partner or through the management of investments) by
Court Square or its Affiliates or by present or former employees of Court Square
or its Affiliates, (C) any present or former managing director, general partner,
director, limited partner, officer or employee of any entity described in clause
(A) or (B) immediately above, or any spouse, lineal descendant, sibling, parent,
heir, executor, administrator, trustee or beneficiary of any of the foregoing
persons described in this clause (C) or (D) any trust, the beneficiaries of
which, or any charitable trust, the grantor of which, include the persons or
entities described in this subsection (v);
(vi) in the case of WEP or DRI Group, a distribution of
Securities to its limited partners or members, as applicable; and
(vii) in the case of a Continuing Investor as of the original
date of this Agreement, the Company for exchange for other Securities of the
Company, but only to the extent of a maximum aggregate amount of Securities to
be exchanged of $500,000.
(c) "Public Offering" means a successfully completed firm commitment
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underwritten public offering pursuant to an effective registration statement
under the Securities Act (other than (i) a Special Registration Statement or (2)
a registration statement relating to a Unit Offering) 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, net of underwriting
discounts and commissions.
(d) "Special Registration Statement" means (i) a registration
------------------------------
statement on Forms S-8 or S-4 or any similar or successor form or any other
registration statement relating to
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an exchange offer or an offering of securities solely to the Company's employees
or security holders or (ii) a registration statement registering a Unit
Offering; and
(e) "Unit Offering" means a Public Offering of a combination of debt
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and equity securities of the Company in which (i) not more than 10% of the gross
proceeds received from the sale of such securities is attributed to such equity
securities, and (ii) after giving effect to such offering, the Company does not
have a class of equity securities required to be registered under the Securities
Exchange Act of 1934, as amended.
2.2. 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 (a) Court Square (so long as Court
Square owns in the aggregate at least 10% of the outstanding Preferred Stock on
a fully diluted basis) or, if Court Square no longer owns 10% of the outstanding
Preferred Stock on a fully diluted basis, the Permitted Transferee of Court
Square holding a majority of the shares of Preferred Stock previously held by
Court Square (so long as such Permitted Transferee owns in the aggregate at
least 10% of the outstanding Preferred Stock on a fully diluted basis), and (b)
the holders of a majority of the outstanding Preferred Stock on a fully diluted
basis owned by the Investors and their Permitted Transferees. 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.
2.3. Survival of Representations and Warranties. All representations,
------------------------------------------
warranties, covenants and agreements set forth in this Agreement will survive
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, regardless of any investigation made by an
Investor or on its behalf.
2.4. Successors and Assigns; Entire Agreement. This Agreement and all
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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.
2.5. Separability. In the event that any provision of this Agreement
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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.
2.6. Notices. All notices provided for or permitted hereunder shall be
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made in writing by hand-delivery, registered or certified first-class mail,
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 Court Square, to:
Court Square Capital Limited
000 Xxxx Xxxxxx - 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: 212.888.2940
with a required copy to:
Dechert
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: G. Xxxxxx X'Xxxxxxx, Esquire
Facsimile: 215.994.2222
If to WEP, to:
World Equity Partners, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile: 212.888.2940
With a required copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx Xxxx, Esquire
Facsimile: 212.446.4900
If to the Company to:
Delco Remy International, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, President
Facsimile: (000) 000-0000
With a required copy to:
Delco Remy International, Inc.
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0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If to the Continuing Investors, the Management Investors, the Holders
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.
2.7. Governing Law. The validity, performance, construction and
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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.
2.8. Headings. The headings in this Agreement are for convenience of
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reference only and shall not constitute a part of this Agreement, nor shall they
affect their meaning, construction or effect.
2.9. Counterparts. This Agreement may be executed in two or more
------------
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.
2.10. 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.
2.11. Remedies. In the event of a breach or a threatened breach by any
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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.
2.12. 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 for
purposes of this Agreement.
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2.13. No Effect on Employment. Nothing herein contained shall confer
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on any Management Investor the right to remain in the employ of the Company or
any of its subsidiaries or Affiliates.
2.14. Pronouns. Whenever the context may require, any pronouns used
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herein shall be deemed also to include the corresponding neuter, masculine or
feminine forms.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
DELCO REMY INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
COURT SQUARE CAPITAL LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
DRI GROUP LLC
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Sole Manager and Member
WORLD EQUITY PARTNERS, L.P.
By:_______________________________
Its:______________________________
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
MANAGEMENT INVESTORS:
/s/ Xxxxxx X. Xxxxxx
________________________________________
Xxxxxx X. Xxxxxx
/s/ J. Xxxxxxx Xxxxxxx
________________________________________
J. Xxxxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
________________________________________
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
________________________________________
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxx
________________________________________
Xxxxx X. Xxxxx
/s/ Xxxxxxxx English
________________________________________
Xxxxxxxx English
/s/ Xxxxxxx X. Xxxxxxx
________________________________________
Xxxxxxx X. Xxxxxxx
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
MANAGEMENT INVESTORS:
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
DAISY FARM LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: General Partner
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
CONTINUING INVESTORS:
XXXXX X. XXXXXXX LIVING TRUST DATED
MARCH 6, 1990
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trustee
XXXXX XXXXXXX LIVING TRUST DATED
MARCH 6, 1990
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Trustee
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