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AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS AGREEMENT ("Agreement"), dated
as of June 30, 1997, is among Xxxxx Wheels International, Inc., a Delaware
corporation (the "Company"), Xxxxxx Xxxxxxxxxx & Levy Fund II, L.P., a Delaware
limited partnership ("JLL"), Chase Equity Associates, a California limited
partnership ("Chase"), CIBC WG Argosy Merchant Fund 2, L.L.C., a Delaware
limited liability company ("Argosy"), Nomura Holding America, Inc., a Delaware
corporation ("Nomura"), TSG Capital Fund II, L.P., a Delaware limited
partnership ("TSG"), and Xxxxxxxx Xxxxxxx, Xxxx Xxxxxx-Xxxxxx, Xxxxxx
Xxxxx-Xxxxxxx and Xxxxx Xxxxx-Xxxxxxx (each a "Lemmerz Stockholder" and,
collectively, the "Lemmerz Stockholders") (JLL, Chase, Argosy, Nomura, TSG and
the Lemmerz Stockholders, each being referred to herein as a "Stockholder" and
collectively being referred to herein as the "Stockholders").
W I T N E S S E T H
WHEREAS, pursuant to Subscription Agreements, each dated March 28,
1996, among each Stockholder (other than the Lemmerz Stockholders), MWC
Holdings, Inc., a Delaware corporation ("Holdings"), and the Company
("Subscription Agreements"), each Stockholder (other than the Lemmerz
Stockholders) purchased (i) shares of preferred stock, $.01 per share
("Preferred Stock"), and (ii) warrants ("Warrants") to purchase shares of
common stock, par value $.01 per share, of the Company following consummation of
the Merger (as defined below) ("Company Common Stock");
WHEREAS, immediately prior to the Merger, JLL owned 281.4815 shares of
common stock, par value $.01 per share of Holdings ("Holdings Common Stock");
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of
March 28, 1996, by and between Holdings and the Company (the "Merger
Agreement"), Holdings was merged with and into the Company on July 2, 1996 (the
"Merger");
WHEREA, as a result of the Merger, (i) each share of Holdings Common
Stock issued and outstanding immediately prior to the Merger was converted into
(A) 8231.76 shares of Company Common Stock and (B) 3029.29 Warrants and (ii)
each share of Preferred Stock issued and outstanding immediately prior to the
Merger was converted into 31.25 shares of Company Common Stock;
WHEREAS, as a result of the Merger, each Stockholder (other than the
Lemmerz Stockholders) owns (i) the number of shares of Company Common Stock set
forth in column A opposite such Stockholder's name on Exhibit A hereto and (ii)
the number of Warrants set forth in column B opposite such Stockholder's name on
Exhibit A hereto;
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WHEREAS, in connection with the Merger, the Company and each
Stockholder (other than the Lemmerz Stockholders) entered into the Stockholders'
Agreement, dated as of July 2, 1996, as amended as of April 8, 1997 (as so
amended, the "Stockholders Agreement");
WHEREAS, pursuant to the Purchase Agreement dated June 6, 1997 among
the Company, an Affiliate of the Company, Lemmerz Holding and the Lemmerz
Stockholders (the "Acquisition Agreement"), the Company and such Affiliate
indirectly are, simultaneously herewith, acquiring (the "Acquisition") from the
Lemmerz Stockholders all of the capital stock (the "Acquired Shares") of Lemmerz
Holding GmbH, a limited liability company organized under the laws of the
Federal Republic of Germany ("Lemmerz Holding");
WHEREAS, as partial consideration for the purchase of the Acquired
Shares, at the closing of the Acquisition, the Company is delivering to the
Lemmerz Stockholders an aggregate of 5,000,000 shares of Series A Preferred
Stock, par value $.01 per share, of the Company ("Company Preferred Stock"),
each of which will be automatically converted into one share of Company Common
Stock (subject to adjustment) upon receipt of approval by the holders of Company
Common Stock;
WHEREAS, as a result of the Acquisition, each Lemmerz Stockholder now
owns the number of shares of Company Preferred Stock set forth opposite such
Lemmerz Stockholder's name on Exhibit B hereto; and
WHEREAS, in connection with the Acquisition, the Company and each
Stockholder desire to amend and restate the Stockholders Agreement, and each
Stockholder desires to enter into this Agreement, all in accordance with the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
Certain Definitions
For purposes of this Agreement, the following terms shall have the
following meanings:
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(a) The term "Affiliate" shall have the meaning set forth in Rule
405 promulgated under the Securities Act.
(b) The term "Commission" shall mean the United States Securities
and Exchange Commission or any successor agency.
(c) The term "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
(d) The term "First Indenture" shall mean the Indenture, dated as
of July 2, 1996, as the same may be amended from time to time, by and among the
Company, as issuer, the Guarantors named therein and Comerica Bank, as trustee.
(e) The term "Market Value" shall mean the average of the closing
sales prices of the Company Common Stock on the New York Stock Exchange
Composite Tape (or as reported on the principal exchange on which the Company
Common Stock is then listed, which for these purposes includes the Nasdaq Stock
Market) during each of the five (5) consecutive trading days ending on the
trading day immediately prior to the date of any Demand.
(f) The term "Merger Agreement" shall mean the Agreement and Plan
of Merger, dated as of March 28, 1996, between MWC Holdings, Inc. and the
Company.
(g) The term "Permitted Transferee" shall mean, with respect to
each Person bound by the terms of this Agreement, (i) any other Stockholder;
(ii) in respect of a Stockholder, any descendant, Affiliate or associate (as
such term is defined in Rule 405 of the Securities Act) of such Stockholder or
any other Permitted Transferee of such Affiliate; (iii) the Company; (iv) in the
event of the dissolution, liquidation or winding up of any such Person that is a
corporation or a partnership, the partners of a partnership that is such Person,
the stockholders of a corporation that is such Person or a successor partnership
all of the partners of which or a successor corporation all of the stockholders
of which are the Persons who were the partners of such partnership or the
stockholders of such corporation immediately prior to the dissolution,
liquidation or winding up of such Person; (v) a transferee by testamentary or
intestate disposition; (vi) a transferee by inter vivos transfer to the
transferring Person's spouse, children and/or other lineal descendants; (vii) a
trust transferee by inter vivos transfer, the beneficiaries of which are the
transferring Person, spouse, children and/or other lineal descendants; (viii) a
successor nominee or trustee for the beneficial owner of the Shares for which
such Person acts as nominee or trustee, as the case may be; or (ix) an
institutional lender for money borrowed pursuant to a bona fide pledge of or the
granting of a
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security interest in such Stockholder's Registrable Securities; provided,
however, that such institutional lender acknowledges in writing that it agrees
to be bound by, and hold the Registrable Securities being pledged subject to,
the terms of this Agreement.
(h) The term "Person" shall mean any individual, firm,
corporation, partnership, limited liability company or other entity, and shall
include any successor (by merger or otherwise) of such entity.
(i) The term "Public Offering" shall mean a public offering of
equity securities of the Company pursuant to an effective registration statement
under the Securities Act, including a public offering in which Stockholders are
entitled to sell Shares pursuant to the terms of Article V hereof.
(j) The term "Registrable Securities" shall mean (i) the Shares
owned by each Stockholder on the date hereof, as set forth opposite each
Stockholder's name on Exhibit A hereto, (ii) additional shares of Company
Common Stock issued to one or more of the Stockholders upon the exercise of the
Warrants, (iii) shares of Company Common Stock issued upon the conversion of the
shares of Company Preferred Stock and (iv) additional shares of Company Common
Stock acquired by one or more Stockholders after the date hereof. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when (i) a registration statement registering such securities under
the Securities Act has been declared effective and such securities have been
sold or otherwise transferred by the holder thereof pursuant to such effective
registration statement, or (ii) such securities are sold in accordance with Rule
144 (or any successor provision) promulgated under the Securities Act, or (iii)
such securities are transferred under circumstances in which any legend borne by
the certificates for such securities relating to restrictions on transferability
thereof, under the Securities Act or otherwise, is removed by the Company.
(k) The term "Registration Period" shall mean the period
commencing on the later of (x) July 2, 1998 and (y) the date on which the
Company Preferred Stock is converted into Company Common Stock and expiring on
July 2, 2004.
(l) The term "Registration Statement" shall mean the registration
statement filed with the Commission on Form S-4 under the Securities Act for the
purpose of registering the shares of Company Common Stock and Warrants issued in
connection with the Merger.
(m) The term "Requisite Amount" shall mean Registrable Securities
having an aggregate Market Value as of the date of any Demand (as hereinafter
defined) of at least $15 million.
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(n) The term "Securities Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
(o) The term "Shares" shall mean the shares of (i) Company Common
Stock owned by each Stockholder on the date hereof, as set forth opposite each
Stockholder's name on Exhibit A hereto, and all shares of Company Common Stock
acquired by any Stockholder after the date of this Agreement, including without
limitation, shares acquired upon exercise of the Warrants and (ii) Company
Preferred Stock owned by each Lemmerz Stockholder on the date hereof, as set
forth opposite each Lemmerz Stockholder's name on Exhibit B hereto, and all
shares of Company Common Stock acquired by any Lemmerz Stockholder after the
date of this Agreement, including without limitation, shares acquired upon
conversion of the shares of Company Preferred Stock.
(p) The term "Transfer" shall mean any voluntary or involuntary
attempt to, directly or indirectly through the transfer of interests in
controlled Affiliates or otherwise, offer, sell, assign, transfer, grant a
participation in, pledge or otherwise dispose of any Shares, or the consummation
of any such transactions, or the soliciting of any offers to purchase or
otherwise acquire, or take a pledge of, any of the Shares, other than hedging or
other derivative transactions that hedge or otherwise relate to investment risks
in respect of any of the Shares; provided, however, that the transfer of an
interest in any of the Stockholders shall not be deemed to be a transfer.
ARTICLE II
Representations and Warranties and Covenants
Section 2.01. Representations and Warranties of the Company.
The Company represents and warrants to each Stockholder (other than to
any Lemmerz Stockholder with respect to Section 2.01(f)) as follows:
(a) Corporate Authority. The Company has full power and authority
to execute, deliver and perform this Agreement;
(b) Due Authorization. This Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except that (i) the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting creditors' rights,
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(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to certain equitable defenses and to the
discretion of the court before which any proceedings therefor may be brought,
and (iii) the rights to indemnity hereunder may be limited by federal or state
securities laws or the public policy underlying such laws;
(c) No Conflict. The execution, delivery and performance of this
Agreement by the Company do not violate or conflict with or constitute a default
under (i) the Company's certificate of incorporation and by-laws, (ii) any
judgment, order or decree or statute, law, ordinance, rule or regulation of any
governmental entity applicable to the Company or (iii) any material agreement to
which it is a party or by which it or its property is bound;
(d) Registration Rights. Except as provided herein and for rights
granted pursuant to that certain Registration Rights Agreement, dated March 28,
1996, among the Company, Varity Corporation, a Delaware corporation, and its
wholly owned subsidiary K-H Corporation, a Delaware corporation, as of the date
hereof, no other party is entitled to any registration or similar right with
respect to any securities of the Company;
(e) Voting Agreements. Except as set forth herein, the Company is
not aware of any voting trust, voting agreement or arrangement with respect to
any of its voting securities; and
(f) Information in Disclosure Documents and Registration
Statement. None of the information in (i) the Registration Statement or (ii)
the joint proxy statement/prospectus distributed in connection with the meeting
of stockholders of each of MWC Holdings, Inc. ("Holdings") and the Company to
vote upon the Merger (the "Proxy Statement"), in the case of the Registration
Statement, at the time it became effective or, in the case of the Proxy
Statement or any amendments thereof or supplements thereto, at the time of the
initial mailing of the Proxy Statement and any amendments or supplements
thereto, and at the time of the meeting of stockholders of Holdings and the
Company held in connection with the Merger, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Registration
Statement, as of its effective date, complied as to form in all material
respects with the requirements of the Securities Act, and the rules and
regulations promulgated thereunder, and as of the date of its initial mailing
and as of the date of the Company's stockholders' meeting, the Proxy Statement
complied as to form in all material respects with the applicable requirements of
the Exchange Act, and the rules and regulations promulgated thereunder.
Notwithstanding the foregoing, the representations and warranties contained in
this Section 2.01(f)
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shall not apply to any statements or omissions made in reliance upon or in
conformity with information furnished in writing to the Company by a Stockholder
expressly for use therein.
Section 2.02 Representations and Warranties of the Stockholders.
Each Stockholder individually represents and warrants to each
other Stockholder and the Company as follows:
(a) Corporate Authority. The Stockholder has full power,
capacity and authority to execute, deliver and perform this Agreement;
(b) Due Authorization. This Agreement has been duly and
validly authorized, executed and delivered by the Stockholder and constitutes a
valid and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except that (i) the enforceability
hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting creditors' rights, (ii)
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to certain equitable defenses and to the discretion of the
court before which any proceedings therefor may be brought, and (iii) the rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws or the public policy underlying such laws; and
(c) No Conflict. The execution, delivery and performance of
this Agreement by the Stockholder do not violate or conflict with or constitute
a default under (i) the Stockholder's organizational documents, (ii) any
judgment, order or decree or statute, law ordinance, rule or regulation of any
governmental entity applicable to the Stockholder, or any material agreement to
which it is a party or by which it or its property is bound.
Section 2.03. Covenants.
The Company covenants to each Stockholder (other than to any
Lemmerz Stockholder with respect to Section 2.03(d)) that it will:
(a) Timely file all reports required to be filed by it
under the Exchange Act, and if at any time the Company is not required to file
such reports, it will take such further action as a Stockholder may reasonably
require, including, without limitation, supply and make publicly available any
other information in the possession of or reasonably obtainable by the Company,
with the purpose of allowing such holder to avail itself of Rule 144 of the
Securities Act or any other rule or regulation of the SEC allowing it to sell
securities without registration under the Securities Act. Upon the request of
any Stockholder,
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the Company will deliver to such Stockholder a written statement as to its
compliance with such requirements.
(b) Not repurchase, and shall cause each of its
subsidiaries not to repurchase, any shares of Company Common Stock (other than
shares of Company Common Stock repurchased to fund employee benefit plans)
without the written approval of the holders of at least 82.5% of the Shares
outstanding on the date hereof less any Shares subsequently Transferred other
than to a Person described in clauses (i) or (ii) of the definition of a
Permitted Transferee.
(c) Afford to each of the Stockholders and its
respective officers, employees, financial advisors, legal counsel, accountants,
consultants and other representatives (except to the extent not permitted under
applicable law as advised by counsel and except as may be limited by any
confidentiality obligations contained in any contract with a third party)
reasonable access during normal business hours during the term of this Agreement
to all of its books and records and its properties and facilities and, during
such period, shall furnish promptly to each Stockholder periodic financial and
other information provided to the Board of Directors of the Company (the
"Board") or to JLL. Unless otherwise required by law, each Stockholder agrees
that it shall (i) hold in confidence all non-public information so acquired and
(ii) not use any such information as the basis for any market transaction in the
securities of the Company unless and until such is made generally available to
the public.
(d) Indemnify, to the fullest extent permitted by law,
each Stockholder (other than any Lemmerz Stockholder), its officers, directors,
employees, advisors, Affiliates and agents, from and against all losses, damages
and liabilities which arise in connection with any action or proceeding relating
to the Registration Statement or the Proxy Statement; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or omission or alleged omission made in the Registration Statement or
the Proxy Statement in reliance upon and in conformity with written information
furnished to the Company by any Stockholder expressly for use therein.
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(e) Not, directly or indirectly, enter into or suffer to
exist any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate (including entities in which the Company or any of
its subsidiaries own a minority interest) or holder of 10% or more of the
Company Common Stock (an "Affiliate Transaction") or extend, renew, waive or
otherwise modify the terms of any Affiliate Transaction entered into prior to
the date hereof unless (i) such Affiliate Transaction is between or among the
Company and/or its subsidiaries; or (ii) the terms of such Affiliate Transaction
are fair and reasonable to the Company or such subsidiary, as the case may be,
and the terms of such Affiliate Transaction are at least as favorable as the
terms which could be obtained by the Company or such subsidiary, as the case may
be, in a comparable transaction made on an arm's-length basis between
unaffiliated parties. The foregoing provisions of this Section 2.03(e) will not
apply to (i) any Restricted Payment as defined in the First Indenture that is
not prohibited by Section 4.13 of the First Indenture, (ii) reasonable and
customary fees paid by the Company or its subsidiaries to their respective
directors or (iii) customary investment banking, underwriting, placement agent
or financial advisor fees paid in connection with services rendered to the
Company or its subsidiaries.
ARTICLE III
Board of Directors
Section 3.01. Composition.
(a) Members. During the term of this Agreement, each of
JLL, TSG, Nomura and the Lemmerz Stockholders shall use their best efforts to
cause the Board to consist of eleven (11) members, of which: (i) four members
shall be designees of JLL; (ii) one member shall be a designee of TSG; (iii) two
members shall be designees of the Lemmerz Stockholders, acting collectively, one
of which shall be Xxxxx Xxxxx-Xxxxxxx, and the other shall not be a director,
officer, manager or employee of Lemmerz Holding or any Subsidiary of Lemmerz
(provided that such designee may otherwise be affiliated with one or more of the
Lemmerz Stockholders), and shall be reasonably acceptable to the Company (in the
event that Xxxx Xxxxx-Lemmerz is unwilling or unable to serve as a director, any
other designee of the Lemmerz Stockholders shall be subject to the same
qualifications); (iv) one member shall be the Chief Executive Officer of the
Company; and (v) the other three members shall be determined by the Board;
provided, however, that such members determined by the Board shall not be
Affiliates of the Company or any of the Stockholders (except that one of such
directors may be an Affiliate of Argosy). For so long as Xxxx Xxxxx-Lemmerz
shall serve as a member of the Board designated by the Lemmerz Stockholders,
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each of JLL, TSG, Nomura and the Lemmerz Stockholders shall use their best
efforts to cause Xxxx Xxxxx-Lemmerz to be appointed a member of the Executive
Committee and a non-voting member of the Compensation Committee of the Board.
During the term of this Agreement and subject to the fiduciary duties of the
Board, the Company shall use its best efforts and shall exercise all authority
under applicable law to nominate for election and cause to be elected or
appointed, as the case may be, as directors of the Company a slate of directors
consisting of individuals meeting the requirements of the previous sentence.
In the event that one of the members of the Board is not an Affiliate of
Argosy, then Argosy shall be entitled to appoint a representative who shall be
permitted to attend all meetings of the Board, but who shall have no voting
power. Such representative shall be given the same notice of any meeting of
the Board as is required to be provided to a member of the Board and shall be
entitled to participate in discussions and consult with the Board. Such
representative shall receive all copies of all documents and shall have the
same access to information provided to members of the Board, in each case, at
the same time as such members of the Board. In addition, such representative
shall receive the same compensation or other economic consideration or
benefits, if any, that any member of the Board designated pursuant to clause
(i) or (ii) of this Section 3.01(a) receives.
(b) Failure to Designate. In the event that (i) a
Stockholder entitled to designate a nominee for the Board is unable to designate
such a nominee, or (ii) the designee of a Stockholder resigns, in either case,
due to any legal provision or restriction relating to such Stockholder, such
Stockholder shall have the right to designate one Person to attend, but not vote
at, any meeting of the Board.
(c) Removal. No Stockholder shall take any action to
cause the removal of any director designated by any other Stockholder other
than "for cause".
(d) Vacancies. If at any time a vacancy is created on
the Board by reason of the death, removal or resignation (other than pursuant to
Section 3.01(b)) of any director who was nominated and elected as a director
pursuant to Section 3.01(a) above or this Section 3.01(d), the Stockholders
shall, as soon as practicable, vote their Shares or act by written consent with
respect to such Shares to elect the individual designated to fill such vacancy
or vacancies by the Stockholder who designated such former director to fill such
vacancy for the unexpired term of the director whom such individual is
replacing.
(e) Decrease in Shares Held. Notwithstanding anything
to the contrary in this Section 3.01, (i) in the event that any Stockholder
entitled pursuant to Section 3.01(a) to designate one or more individuals for
nomination and election to the Board (other than the Lemmerz Stockholders)
shall, together with its Affiliates or associates (as such term is defined in
Rule 405 of the Securities Act), cease to own at least 50% of the Shares owned
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by such Stockholder on the date hereof, such Stockholder shall no longer have
any right pursuant to this Agreement to designate any nominees for election to
the Board; and (ii) in the event that the Lemmerz Stockholders shall, together
with their descendants, Affiliates or associates (as such term is defined in
Rule 405 of the Securities Act), cease to own, in the aggregate, (A) at least
50% of the Shares owned, in the aggregate, by such Persons on the date hereof,
the Lemmerz Stockholders shall have the right pursuant to this Agreement to
designate only one nominee for election to the Board and (B) at least 25% of
the Shares owned, in the aggregate, by such Persons on the date hereof, the
Lemmerz Stockholders shall no longer have any right pursuant to this Agreement
to designate any nominees for election to the Board.
(f) Board Designees. The majority of the directors then
comprising the Board shall have the right to designate nominees to be elected to
the Board for any available directorship as to which no Stockholder has the
right to designate a nominee pursuant to Section 3.01(a) hereof.
(g) Voting Agreement. Each of JLL, TSG, Nomura and the
Lemmerz Stockholders agrees that, during the term of this Agreement, (i) it will
be present, in person or represented by proxy, at all stockholder meetings of
the Company for the election of directors, so that all shares of Company Common
Stock beneficially owned by it shall be counted for the purpose of determining
the presence of a quorum for the election of directors at such meetings, (ii) it
shall vote, or act by consent with respect to, all shares of Company Common
Stock beneficially owned by it for the election of the nominees for the Board
nominated by the Board so long as such nominees consist of individuals meeting
the requirements of this Section 3.01, and (iii) it shall vote against, and
shall not take any action in support of, any matter presented to the
stockholders for vote prior to the conversion of the Company Preferred Stock,
including the issuance of additional shares of Company Common Stock or the
consummation of a merger or similar transaction, the approval of which would
result in the irrevocable proxies delivered to the Lemmerz Stockholders in
conjunction with the Acquisition Agreement representing, in the aggregate, less
than a majority of the voting shares of the Company then outstanding and
eligible to vote on the Approval (as defined in the Acquisition Agreement).
Except as specifically set forth in this Section 3.01(g), each of JLL, TSG,
Nomura and the Lemmerz Stockholders shall be entitled to vote its shares of
Company Common Stock on all other matters as it deems fit.
Section 3.02. Indemnification.
Immediately following the Acquisition, the Company shall
enter into an indemnification agreement substantially in the form of Exhibit C
hereto with each member of the Board not then a party thereto.
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ARTICLE IV
Restrictions on Transfer
Section 4.01. General Restrictions.
(a) No Stockholder may Transfer any Shares prior to the
commencement of the Registration Period except for Transfers (i) to any of its
Permitted Transferees; provided, however, that prior to any Transfer of Shares,
such Permitted Transferee shall agree in writing to take such Shares subject to,
and to comply with, all of the provisions of this Agreement, a copy of which
agreement shall be on file with the Secretary of the Company and shall include
the address of such transferee to which notices hereunder shall be sent, (ii)
pursuant to any offer, including a tender or exchange offer, by any party
(including the Company) to purchase all of the outstanding shares of Company
Common Stock (and, if earlier than the date on which the Company Preferred Stock
is converted into Company Common Stock, all of the outstanding shares of Company
Preferred Stock for the same price per share as the shares of Company Common
Stock), which offer has been approved by the Board and (iii) pursuant to any
corporate transaction requiring the approval of the holders of a majority of the
shares of outstanding Company Common Stock and as to which the requisite
approval of the Stockholders shall have been obtained.
(b) From and after July 2, 1998 until the expiration or earlier
termination of this Agreement, in addition to Transfers permitted by Section
4.01(a), any Stockholder may Transfer any or all of its Shares to any other
Stockholder or any third party, pursuant to: (i) paragraphs (e) and (f) of Rule
144 or any similar rule adopted by the Commission (whether or not paragraph (k)
of Rule 144 is applicable); (ii) a Public Offering; or (iii) any other Transfer;
provided, however, that prior to any Transfer of Shares to a third party
pursuant to this Section 4.01(b)(iii), such third-party transferee shall agree
in writing to take such Shares subject to, and to comply with, the provisions of
Section 3.01(g) of this Agreement. Notwithstanding anything stated herein to
the contrary, the Transfer of Shares by any of JLL, TSG or any Lemmerz
Stockholder shall not result in the assignment of such transferring
Stockholder's rights under Section 3.01(a) hereof.
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Section 4.02.Compliance with Securities Laws.
Each Stockholder agrees that every Transfer of its Shares shall
comply with all federal and state securities laws applicable to such
transaction. At the request of the Company, the transferring Stockholder shall
deliver to the Company an opinion of counsel, which counsel and opinion shall be
reasonably satisfactory to the Company, to the effect that the sale, transfer or
other disposition satisfies this Section 4.02.
Section 4.03.Transfers Not In Compliance.
In the event of any purported or attempted Transfer of Shares by
a Stockholder that does not comply with this Agreement, the purported transferee
or successor by operation of law shall not be deemed to be a stockholder of the
Company for any purpose and shall not be entitled to any of the rights of a
stockholder, including, without limitation, the right to vote the Shares or to
receive a certificate for the Shares or any dividends or other distributions on
or with respect to the Shares.
Section 4.04.Tag-Along Rights.
Except as provided below, if, at any time during the term of this
Agreement, JLL proposes to directly or indirectly Transfer its Shares to a
Person (other than transfers to (a) persons or entities described in clauses
(ii) or (iv) of the definition of Permitted Transferee or (b) pursuant to a
Public Offering), JLL shall provide the remaining Stockholders (each a "Notice
Recipient") and the Company with not less than twenty (20) days' prior written
notice of such proposed sale, which notice shall include all of the terms and
conditions of such proposed sale and which shall identify such purchaser (the
"Sale Notice"); and each Notice Recipient shall have the option, exercisable by
written notice to JLL within ten (10) days after the receipt of the Sale Notice,
to require JLL to arrange for such purchaser or purchasers to purchase the same
percentage (the "Percentage") of the Shares then owned by such Notice Recipient
as the ratio of the total number of Shares which are to be sold by JLL pursuant
to the proposed sale to the total number of Shares owned by JLL immediately
prior to such Transfer, or any lesser amount of Shares as such Notice Recipient
shall desire, together with JLL's Shares at the same time as, and upon the same
terms and conditions (including all direct or indirect consideration or
compensation) at which, JLL sells its Shares; provided that such terms and
conditions shall (i) not include a covenant not to compete or (ii) provide for
indemnity or contribution in excess of such Notice Recipient's proceeds from
such sale. If a Notice Recipient shall so elect, JLL agrees that it shall
either (a) arrange for the proposed purchaser or purchasers to purchase all or a
portion (as such Notice Recipient shall specify) of the same Percentage of the
Shares then owned by such Notice Recipient at the same time as and upon the
same terms and conditions at which JLL sells its Shares (it being
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understood that in the event such Notice Recipient's Shares require exercise,
conversion or exchange to effect such sale, such exercise, conversion or
exchange may be made simultaneously with the closing of such sale), and
provided that if such purchaser or purchasers shall elect to purchase only such
aggregate number of Shares as originally agreed with JLL, then the number of
Shares to be sold by JLL and all Notice Recipients electing to participate in
the proposed sale shall be reduced pro rata to such aggregate number, or (b)
not effect the proposed sale to such purchaser or purchasers. In the event
that a Notice Recipient does not exercise its right to participate in such sale
or declines to so participate, JLL shall have 120 days from the date of such
Sale Notice to consummate the transaction on the terms set forth therein
without being required to provide an additional Sale Notice to the remaining
Stockholders. Notwithstanding the foregoing, JLL shall not be obligated to
provide any rights pursuant to this Section 4.04 unless and until JLL has
previously Transferred an aggregate of at least 964,000 of its Shares.
Section 4.05 Restrictions on Company Common Stock Acquired After the Date
Hereof.
From and after the date hereof, the Lemmerz Stockholders,
acting as a single entity, and each of JLL, TSG, Argosy, Chase and Nomura agree
that neither it nor any of its controlled or commonly controlled Affiliates may
acquire beneficial ownership of more than 3,000,000 shares of Company Common
Stock, other than pursuant to any stock dividend or distribution with respect
to its shares or upon exercise of the Warrants. Shares of Company Common Stock
acquired by any Stockholder after the date of this Agreement, including,
without limitation, upon conversion of the shares of Company Preferred Stock,
shall be treated the same as, and shall be subject to the same restrictions as,
Shares held by such Stockholder as of the date of this Agreement for purposes
of this Agreement.
ARTICLE V
Registration Rights
Section 5.01. Demand Registrations.
(a) Requests for Registration. During the Registration
Period, Stockholders holding the Requisite Amount of Registrable Securities
shall be entitled to make a written request of the Company (a "Demand") for
registration under the Securities Act of all or part of the Registrable
Securities (a "Demand Registration"). Such Demand shall specify: (i) the
aggregate number of Registrable Securities requested to be registered, (ii) the
intended method of distribution in connection with such Demand Registration to
the extent then known and (iii) the identity of the Stockholder or Stockholders
(each, a "Demanding
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holder") requesting such Demand. Within ten (10) days after receipt of a
Demand, the Company shall give written notice of such Demand to all other
Stockholders and shall include in such registration all Registrable Securities
with respect to which the Company has received a written request for inclusion
therein within twenty (20) days after the receipt by such Stockholder of the
Company's notice required by this paragraph.
(b) Number of Demands. The Lemmerz Stockholders, acting
together as a single entity, and each of JLL, TSG, Argosy, Chase and Nomura
shall be entitled to two (2) Demand Registrations; provided, however, that each
Stockholder, including, without limitations, the Lemmerz Stockholders, acting
together as a single entity, who is identified as a Demanding holder shall be
deemed to have made a demand with respect to such Demand Registration.
(c) Satisfaction of Obligations. A registration shall not be
treated as a permitted Demand for a Demand Registration until (i) the applicable
registration statement under the Securities Act has been filed with the
Commission with respect to such Demand Registration (which shall include any
registration statement that is not withdrawn by holders of Registrable
Securities in the circumstances contemplated by Section 5.03), and (ii) such
registration statement shall have been maintained continuously effective for a
period of at least ninety (90) days or such shorter period as all Registrable
Securities included therein have been disposed of thereunder in accordance with
the manner of distribution set forth in such registration statement.
(d) Availability of Short Form Registrations. The Company
shall use its best efforts to comply with the requirements for use of short
form registration for the sale of securities under the Securities Act.
(e) Restrictions on Demand Registrations. The Company shall
not be obligated (i) in the case of a Demand Registration, to maintain the
effectiveness of a registration statement under the Securities Act, for a period
longer than ninety (90) days or (ii) to effect any Demand Registration within
one hundred eighty (180) days after the effective date of (A) a "firm
commitment" underwritten registration in which all Stockholders were given
"piggyback" rights pursuant to Section 5.02 hereof (provided that, with respect
to such a registration in which such piggyback rights were exercised, each such
Stockholder exercising such piggyback rights was permitted to include in such
registration at least 75% of the Registrable Securities that such Stockholder
sought to include therein) or (B) any other Demand Registration. In addition,
the Company shall be entitled to postpone (upon written notice to all
Stockholders) for up to ninety (90) days the filing or the effectiveness of a
registration statement in respect of a Demand (but no more than once in any
period of twelve (12) consecutive months) if the Board determines in good faith
and in its reasonable judgment
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that effecting the Demand Registration in respect of such Demand would
have a material adverse affect on any proposal or plan by the Company to engage
in any debt or equity offering, material acquisition or disposition of assets
(other than in the ordinary course of business) or any merger, consolidation,
tender offer or other similar transaction. In the event of a postponement by
the Company of the filing or effectiveness of a registration statement in
respect of a Demand, the Demanding holders shall have the right to withdraw
such Demand in accordance with Section 5.03 hereof.
(f) Participation in Demand Registrations. The Company shall
not include any securities other than Registrable Securities in a Demand
Registration, except with the written consent of the holders of the majority of
the Registrable Securities sought to be registered pursuant to such Demand
Registration held by all the Demanding holders. If, in connection with a Demand
Registration, any managing underwriter (or, if such Demand Registration is not
an underwritten offering, a nationally recognized independent underwriter
selected by the Demanding holders of a majority of the Registrable Securities
held by all the Demanding holders (which such underwriter shall be reasonably
acceptable to the Company and whose fees and expenses shall be borne solely by
the Company)) advises the Company and the Demanding holders of a majority of the
Registrable Securities held by all the Demanding holders that, in its opinion,
the inclusion of all the Registrable Securities and, if authorized pursuant to
this paragraph, other securities of the Company, in each case, sought to be
registered in connection with such Demand Registration would adversely affect
the marketability of the Registrable Securities sought to be sold pursuant
thereto, then the Company shall include in the registration statement applicable
to such Demand Registration only such securities as the Company and the holders
of Registrable Securities sought to be registered therein ("Demanding Sellers")
are advised by such underwriter can be sold without such an effect (the "Maximum
Demand Number"), as follows and in the following order of priority:
(i) first, the number of Registrable Securities received
pursuant to the Merger (excluding, for these purposes, Registrable Securities
issued upon exercise of Warrants received pursuant to the Merger) or upon
conversion of the shares of Company Preferred Stock sought to be registered by
each Demanding Seller, pro rata in proportion to the number of Registrable
Securities received pursuant to the Merger or upon conversion of the shares of
Company Preferred Stock sought to be registered by all Demanding Sellers; and
(ii) second, if the number of Registrable Securities to
be included under clause (i) above is less than the Maximum Demand Number, the
number of Registrable Securities received other than (x) pursuant to the Merger
(including, for these purposes, Registrable Securities issued upon exercise of
Warrants received pursuant to the
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Merger) or (y) upon conversion of the shares of Company Preferred Stock sought
to be registered by each Demanding Seller, pro rata in proportion to the number
of Registrable Securities neither received pursuant to the Merger nor upon
conversion of the shares of Company Preferred Stock sought to be registered by
all Demanding Sellers; and
(iii) third, if the number of Registrable Securities to be
included under clauses (i) and (ii) above is less than the Maximum Demand
Number, the number of securities sought to be included by each other seller, pro
rata in proportion to the number of securities sought to be sold by all such
other sellers, which in the aggregate, when added to the number of securities to
be included pursuant to clauses (i) and (ii) above, equals the Maximum Demand
Number.
(g) Selection of Underwriters. If the Demanding holders of
a majority of the Registrable Securities held by all the Demanding holders
request that such Demand Registration be an underwritten offering, then such
holders shall select a nationally recognized underwriter or underwriters to
manage and administer such offering, such underwriter or underwriters, as the
case may be, to be subject to the approval of the Board, which approval shall
not be unreasonably withheld or delayed.
(h) Other Registrations. If the Company has received a
Demand and if the applicable registration statement in respect of such Demand
has not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (other than a registration relating to the Company employee
benefit plans, exchange offers by the Company or a merger or acquisition of a
business or assets by the Company, including, without limitation, a registration
on Form S-4 or S-8 or any successor form), whether on its own behalf or at the
request of any holder or holders of such securities, until a period of at least
ninety (90) days has elapsed from the effective date of any Demand Registration,
unless a shorter period of time is approved by the Demanding holders of a
majority of the Registrable Securities held by all the Demanding holders.
Notwithstanding the foregoing, the Company shall be entitled to postpone any
such Demand Registration and may file or cause to be effected such other
registration in accordance with the terms of Section 5.01(e) hereof.
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Section 5.02 Piggyback Registrations.
(a) Right to Piggyback. During the Registration Period,
whenever the Company proposes to register any of its equity securities or
securities convertible or exchangeable into or exercisable for its equity
securities under the Securities Act (other than a registration relating to the
Company employee benefit plans, exchange offers by the Company or a merger or
acquisition of a business or assets by the Company including, without
limitation, a registration on Form S-4 or Form S-8 or any successor form) (a
"Piggyback Registration"), the Company shall give all Stockholders prompt
written notice thereof (but not less than ten (10) days prior to the filing by
the Company with the Commission of any registration statement with respect
thereto). Such notice (a "Piggyback Notice") shall specify, at a minimum, the
number of securities proposed to be registered, the proposed date of filing of
such registration statement with the Commission, the proposed means of
distribution, the proposed managing underwriter or underwriters (if any and if
known), and a good faith estimate by the Company of the proposed minimum
offering price of such securities. Upon the written request of a Stockholder
given within ten (10) business days of such Stockholder's receipt of the
Piggyback Notice (which written request shall specify the number of Registrable
Securities intended to be disposed of by such Stockholder and the intended
method of distribution thereof), the Company shall include in such registration
all Registrable Securities with respect to which the Company has received such
written requests for inclusion.
(b) Priority on Piggyback Registrations. If, in connection
with a Piggyback Registration, any managing underwriter (or, if such Piggyback
Registration is not an underwritten offering, a nationally recognized
independent underwriter selected by the Company (reasonably acceptable to the
holders of a majority of the Registrable Securities sought to be included in
such Piggyback Registration and whose fees and expenses shall be borne solely by
the Company)) advises the Company and the holders of the Registrable Securities
to be included in such Piggyback Registration, that, in its opinion, the
inclusion of all the securities sought to be included in such Piggyback
Registration by the Company, any Persons who have sought to have shares
registered thereunder pursuant to rights to demand (other than pursuant to
so-called "piggyback" or other incidental or participation registration rights)
such registration (such demand rights being "Other Demand Rights" and such
Persons being "Other Demanding Sellers"), any holders of Registrable Securities
seeking to sell such securities in such Piggyback Registration ("Piggyback
Sellers") and any other proposed sellers, in each case, if any, would adversely
affect the marketability of the securities sought to be sold pursuant thereto,
then the Company shall include in the registration statement applicable to such
Piggyback Registration only such securities as the Company, the Other Demanding
Sellers, and the Piggyback Sellers are so advised by such underwriter can be
sold without such an effect (the "Maximum Piggyback Number"), as follows and in
the following order of priority:
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(i) if the Piggyback Registration is an offering
on behalf of the Company and not any Person exercising Other Demand
Rights (whether or not other Persons seek to include securities
therein pursuant to so-called "piggyback" or other incidental or
participatory registration rights) (a "Primary Offering"), then (A)
first, such number of securities to be sold by the Company as the
Company, in its reasonable judgment and acting in good faith and in
accordance with sound financial practice, shall have determined, (B)
second, if the number of securities to be included under clause (A)
above is less than the Maximum Piggyback Number, the number of
Registrable Securities received pursuant to the Merger (excluding, for
these purposes, Registrable Securities issued upon exercise of
Warrants received pursuant to the Merger) or upon conversion of the
shares of Company Preferred Stock sought to be registered by each
Piggyback Seller, pro rata in proportion to the number of Registrable
Securities received pursuant to the Merger or upon conversion of the
shares of Company Preferred Stock sought to be registered by all the
Piggyback Sellers, (C) third, if the number of securities to be
included under clauses (A) and (B) above is less than the Maximum
Piggyback Number the number of Registrable Securities received other
than (x) pursuant to the Merger (including, for these purposes,
Registrable Securities issued upon exercise of Warrants received
pursuant to the Merger) or (y) upon conversion of the shares of
Company Preferred Stock sought to be registered by each Piggyback
Seller, pro rata in proportion to the Registrable Securities neither
received in the Merger nor upon conversion of the shares of Company
Preferred Stock sought to be registered by all the Piggyback Sellers
and all other proposed sellers, which in the aggregate, when added to
the number of securities to be registered under clauses (A) and (B)
above, equals the Maximum Piggyback Number;
(ii) if the Piggyback Registration is an offering
other than pursuant to a Primary Offering, then (A) first, such number
of securities sought to be registered by each Other Demanding Seller,
pro rata in proportion to the number of securities sought to be
registered by all such Other Demanding Sellers, (B) second, if the
number of securities to be included under clause (A) above is less
than the Maximum Piggyback Number, the number of Registrable
Securities received pursuant to the Merger (excluding, for these
purposes, Registrable Securities issued upon exercise of Warrants
received pursuant to the Merger) or upon conversion of the shares of
Company Preferred Stock sought to be registered by each Piggyback
Seller, pro rata in proportion to the number of Registrable Securities
received pursuant to the Merger or upon conversion of the shares of
Company Preferred Stock sought to be registered by all the Piggyback
Sellers, (C) third, if the number of securi-
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ties to be included under clauses (A) and (B) above is less than the
Maximum Piggyback Number, the number of Registrable Securities
received other than (x) pursuant to the Merger (including, for these
purposes, Registrable Securities issued upon exercise of Warrants
received pursuant to the Merger) or (y) upon conversion of the shares
of Company Preferred Stock sought to be registered by each Piggyback
Seller, pro rata in proportion to the Registrable Securities neither
received pursuant to the Merger nor upon conversion of the shares of
Company Preferred Stock sought to be registered by all the Piggyback
Sellers and all other proposed sellers, which in the aggregate, when
added to the number of securities to be registered under clauses (A)
and (B) above, equals the Maximum Piggyback Number.
(c) Withdrawal by the Company. If, at any time
after giving written notice of its intention to register any of its securities
as set forth in Section 5.02 and prior to time the registration statement filed
in connection with such registration is declared effective, the Company shall
determine for any reason not to register such securities, the Company may, at
its election, give written notice of such determination to each Stockholder and
thereupon shall be relieved of its obligation to register any Registrable
Securities in connection with such particular withdrawn or abandoned
registration (but not from its obligation to pay the Registration Expenses in
connection therewith as provided herein). In the event that the Piggyback
Sellers of such a registration hold the Requisite Amount of Registrable
Securities, such holders may continue the registration as a Demand
Registration. The continuation of such registration shall be counted as a
Demand for all Stockholders who continue as participants in such registration.
Section 5.03. Withdrawal Rights.
Any Stockholder having notified or directed the Company to
include any or all of its Registrable Securities in a registration statement
under the Securities Act shall have the right to withdraw any such notice or
direction with respect to any or all of the Registrable Securities designated
for registration thereby by giving written notice to such effect to the Company
prior to the effective date of such registration statement. In the event of any
such withdrawal, the Company shall not include such Registrable Securities in
the applicable registration and such Registrable Securities shall continue to be
Registrable Securities hereunder. No such withdrawal shall affect the
obligations of the Company with respect to the Registrable Securities not so
withdrawn; provided that in the case of a Demand Registration, if such
withdrawal shall reduce the number of Registrable Securities sought to be
included in such registration below the Requisite Amount, then the Company shall
as promptly as practicable give each holder of Registrable Securities sought to
be registered notice to such effect, referring to this Agreement and summarizing
this Section 5.03, and
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within five (5) business days following the effectiveness of such notice,
either the Company or the holders of a majority of the Registrable Securities
sought to be registered may, by written notices made to each holder of
Registrable Securities sought to be registered and the Company, respectively,
elect that such registration statement not be filed or, if theretofore filed,
be withdrawn. During such five (5) business day period, the Company shall not
file such registration statement if not theretofore filed or, if such
registration statement has been theretofore filed, the Company shall not seek,
and shall use its best efforts to prevent, the effectiveness thereof. Any
registration statement withdrawn or not filed (i) in accordance with an
election by the Company, (ii) in accordance with an election by the holders of
the majority of the Registrable Securities sought to be registered pursuant to
such Demand Registration held by all the Demanding holders pursuant to Section
5.01(e) hereof, (iii) in accordance with an election by the holders of the
majority of the Registrable Securities sought to be registered pursuant to such
Demand Registration held by all the Demanding holders prior to the
effectiveness of the applicable Demand Registration Statement or (iv) in
accordance with an election by the holders of the majority of the Registrable
Securities sought to be registered pursuant to such Demand Registration held by
all the Demanding holders subsequent to the effectiveness of the applicable
Demand Registration Statement, if any post-effective amendment or supplement to
the applicable Demand Registration Statement contains adverse information
regarding the Company shall not be counted as a Demand. Except as set forth in
clause (iv) of the previous sentence any Demand withdrawn in accordance with an
election by the Demanding holders subsequent to the effectiveness of the
applicable Demand Registration Statement shall be counted as a Demand unless
the Stockholders reimburse the Company for its reasonable out-of-pocket
expenses (but, without implication that the contrary would otherwise be true,
not including any Internal Expenses, as defined below) related to the
preparation and filing of such registration statement (in which event such
registration statement shall not be counted as a Demand hereunder). Upon the
written request of a majority of the Stockholders, the Company shall promptly
prepare a definitive statement of such out-of-pocket expenses in connection
with such registration statement in order to assist such holders with a
determination in accordance with the next preceding sentence.
Section 5.04. Holdback Agreements.
Each Stockholder agrees not to effect any public sale or
distribution (including sales pursuant to Rule 144) of equity securities of the
Company, or any securities convertible into or exchangeable or exercisable for
such securities, during the ten (10) day period prior to the date which the
Company has, or in the case of a Demand Registration, the Demanding holders
have, notified the Stockholders that it or they intend to commence a Public
Offering through the sixty (60) day period immediately following the effective
date of any Demand Registration or any Piggyback Registration (in each case,
except as part of such registration), or, in each case, if later, the date of
any underwriting agreement with respect
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thereto; provided, however, that the Stockholders shall not be obligated to
comply with this Section 5.04 on more than one (1) occasion in any nine (9)
month period. The holders of 82.5% of the Registrable Securities included in a
Demand Registration may waive the limitation contained in this paragraph with
respect to such Demand Registration.
Section 5.05. Registration Procedures.
(a) Whenever the Stockholders have requested that
any Registrable Securities be registered pursuant to this Agreement (whether
pursuant to Demand Registration or Piggyback Registration), the Company
(subject to its right to withdraw such registration as contemplated by Section
5.02(c)) shall use its best efforts to effect the registration and the sale of
such Registrable Securities in accordance with the intended method of
disposition thereof and, in connection therewith, the Company shall as
expeditiously as possible:
(i) prepare and file with the Commission a
registration statement with respect to such Registrable Securities on any form
for which the Company then qualifies and is available for the sale of
Registrable Securities to be registered thereunder in accordance with the
intended method of distribution and use its best efforts to cause such
registration statement to become effective within ninety (90) days of the date
hereof;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for a continuous period of not less than ninety (90) days
(or, if earlier, until all Registrable Securities included in such registration
statement have been sold thereunder in accordance with the manner of
distribution set forth therein) and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof as set forth in such registration
statement (including, without limitation, by incorporating in a prospectus
supplement or post-effective amendment, at the request of a seller of
Registrable Securities, the terms of the sale of such Registrable Securities);
(iii) before filing with the Commission any such
registration statement or prospectus or any amendments or supplements thereto,
the Company shall furnish to counsel selected by the Demanding holders of a
majority of the Registrable Securities held by the Demanding holders, counsel
for the underwriter or sales or placement agent, if any, and any other counsel
for holders of Registrable Securities, if any, in connection therewith, drafts
of all such documents proposed to be filed and provide such counsel with a
reasonable opportunity for review thereof and comment thereon, such review to be
conducted and such comments to be delivered with reasonable promptness;
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(iv) promptly (i) notify each seller of Registrable
Securities of each of (x) the filing and effectiveness of the registration
statement and prospectus and any amendment or supplements thereto, (y) the
receipt of any comments from the Commission or any state securities law
authorities or any other governmental authorities with respect to any such
registration statement or prospectus or any amendments or supplements thereto,
and (z) any oral or written stop order with respect to such registration, any
suspension of the registration or qualification of the sale of such Registrable
Securities in any jurisdiction or any initiation or threatening of any
proceedings with respect to any of the foregoing and (ii) use its best efforts
to obtain the withdrawal of any order suspending the registration or
qualification (or the effectiveness thereof) or suspending or preventing the use
of any related prospectus in any jurisdiction with respect thereto;
(v) furnish to each seller of Registrable
Securities, the underwriters and the sales or placement agent, if any, and
counsel for each of the foregoing, a conformed copy of such registration
statement and each amendment and supplement thereto (in each case, including all
exhibits thereto and documents incorporated by reference therein) and such
additional number of copies of such registration statement, each amendment and
supplement thereto (in such case without such exhibits and documents) the
prospectus (including each preliminary prospectus) included in such registration
statement and prospectus supplements and all exhibits thereto and documents
incorporated by reference therein and such other documents as such seller,
underwriter, agent or counsel may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Seller;
(vi) if requested by the managing underwriter or
underwriters of any registration or by the Demanding holders of a majority of
the Registrable Securities held by the Demanding holders, subject to approval of
counsel to the Company in its reasonable judgment, promptly incorporate in a
prospectus, supplement or post-effective amendment to the registration statement
such information concerning underwriters and the plan of distribution of the
Registrable Securities as such managing underwriter or underwriters or such
holders reasonably shall furnish to the Company in writing and request be
included therein, including, without limitation, with respect to the number of
Registrable Securities being sold by such holders to such underwriter or
underwriters, the purchase price being paid therefor by such underwriter or
underwriters and with respect to any other terms of the underwritten offering of
the Registrable Securities to be sold in such offering; and make all required
filings of such prospectus, supplement or post-effective amendment as soon as
possible after being notified of the matters to be incorporated in such
prospectus, supplement or post-effective amendment;
(vii) use its best efforts to register or qualify
such Registrable Securities under such securities or "blue sky" laws of such
jurisdictions as the holders of a
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majority of Registrable Securities sought to be registered reasonably request
and do any and all other acts and things which may be reasonably necessary or
advisable to enable the holders of a majority of Registrable Securities sought
to be registered to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such holders and keep such registration or
qualification in effect for so long as the registration statement remains
effective under the Securities Act (provided that the Company shall not be
required to (x) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph, (y) subject
itself to taxation in any such jurisdiction where it would not otherwise be
subject to taxation but for this paragraph or (z) consent to the general
service of process in any jurisdiction where it would not otherwise be subject
to general service of process but for this paragraph);
(viii) notify each seller of such Registrable
Securities, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, upon the discovery that, or of the happening
of any event as a result of which, the registration statement covering such
Registrable Securities, as then in effect, contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or any fact necessary to make the statements therein not misleading, and
promptly prepare and furnish to each such seller a supplement or amendment to
the prospectus contained in such registration statement so that such
Registration Statement shall not, and such prospectus as thereafter delivered to
the purchasers of such Registrable Securities shall not, contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or any fact necessary to make the statements therein not
misleading;
(ix) cause all such Registrable Securities to be
listed on the New York Stock Exchange and/or any other securities exchange and
included in each established over-the-counter market on which or through which
similar securities of the Company are listed or traded and, if not so listed or
traded, to be listed on the NASD automated quotation system ("Nasdaq") and if
listed on Nasdaq, use its reasonable efforts to secure designation of all such
Registrable Securities covered by such registration statement as a Nasdaq
"national market system security" within the meaning of Rule 11Aa2-1 under the
Securities Exchange Act of 1934, as amended, or, failing that, to secure Nasdaq
authorization for such Registrable Securities;
(x) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney, accountant or other
agent retained by any such seller or underwriter all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors, employees, attorneys and independent
accountants to supply all information reasonably requested by any such sellers,
underwriters,
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attorneys, accountants or agents in connection with such registration
statement. Information which the Company determines, in good faith, to be
confidential shall not be disclosed by such persons unless (x) the disclosure
of such information is necessary to avoid or correct a misstatement or omission
in such registration statement, or (y) the release of such information is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. Each seller of Registrable Securities agrees, on its own behalf
and on behalf of all its underwriters, accountants, attorneys and agents, that
the information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such is made
generally available to the public. Each seller of Registrable Securities
further agrees, on its own behalf and on behalf of all its underwriters,
accountants, attorneys and agents, that it will, upon learning that disclosure
of such information is sought in a court of competent jurisdiction, give notice
to the Company and allow the Company, at its expense, to undertake appropriate
action to prevent disclosure of the information deemed confidential;
(xi) use its best efforts to comply with all
applicable laws related to such registration statement and offering and sale of
securities and all applicable rules and regulations of governmental authorities
in connection therewith (including, without limitation, the Securities Act and
the Exchange Act) and make generally available to its security holders as soon
as practicable (but in any event not later than fifteen (15) months after the
effectiveness of such registration statement) an earnings statement of the
Company and its subsidiaries complying with Section 11(a) of the Securities Act;
(xii) permit any Stockholder, which Stockholder, in
its sole and exclusive judgment, might be deemed to be an underwriter or
controlling person of the Company, to participate in the preparation of such
registration statement and to require the insertion therein of material,
furnished to the Company in writing, which in the reasonable judgment of such
holder and such holder's counsel should be included;
(xiii) use reasonable best efforts to furnish to each
seller of Registrable Securities a signed counterpart of (x) an opinion of
counsel for the Company and (y) a "comfort" letter signed by the independent
public accountants who have certified the Company's financial statements
included or incorporated by reference in such registration statement, covering
such matters with respect to such registration statement and, in the case of the
accountants' comfort letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' comfort letters delivered to the underwriters in
underwritten public offerings of securities for the account of, or on behalf of,
an issuer of common stock, such opinion and comfort letters to be dated the date
of such opinions and comfort letters are customarily dated in such transactions,
and covering in the case of such legal opinion, such other legal matters and, in
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the case of such comfort letter, such other financial matters, as the holders
of a majority of the Registrable Securities being sold may reasonably request;
(xiv) take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities; and
(xv) the Company shall use its reasonable best
efforts so that in lieu of exercising any Warrant prior to or simultaneously
with the filing or the effectiveness of any registration statement filed
pursuant to this Article V, the holder of such Warrant may sell such Warrant to
the underwriter of the offering being registered upon the undertaking of such
underwriter to exercise such Warrant before making any distribution pursuant to
such registration statement and to include the Common Stock issued upon such
conversion among the securities being offered pursuant to such registration
statement. The Company agrees to cause such Common Stock to be included among
the securities being offered pursuant to such registration statement to be
issued within such time as will permit the underwriter to make and complete the
distribution contemplated by the underwriting.
(b) Underwriting. Without limiting any of the foregoing, in
the event that the offering of Registrable Securities is to be made by or
through an underwriter, the Company shall enter into an underwriting agreement
with a managing underwriter or underwriters containing representations,
warranties, indemnities and agreements customarily included (but not
inconsistent with the agreements contained herein) by an issuer of common stock
in underwriting agreements with respect to offerings of common stock for the
account of, or on behalf of, such issuers. In connection with the sale of
Registrable Securities hereunder, any seller of such Registrable Securities may,
at its option, require that any and all representations and warranties by, and
indemnities and agreements of, the Company to or for the benefit of such
underwriter or underwriters (or which would be made to or for the benefit of
such an underwriter or underwriter if such sale of Registrable Securities were
pursuant to a customary underwritten offering) be made to and for the benefit of
such seller and that any or all of the conditions precedent to the obligations
of such underwriter or underwriters (or which would be so for the benefit of
such underwriter or underwriters under a customary underwriting agreement) be
conditions precedent to the obligations of such seller in connection with the
disposition of its securities pursuant to the terms hereof (it being agreed that
in connection with any Demand Registration, without limiting any rights or
remedies of the Stockholders, in the event any such condition precedent shall
not be satisfied and, if not so satisfied, shall not be waived by the holders of
a majority of the Registerable Securities to be included in such Demand
Registration, such Demand Registration shall not be counted as a permitted
Demand hereunder). In connection with any offering of Registrable Securities
registered pursuant to this Agreement, the Company shall (x) furnish to the
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underwriter, if any (or, if no underwriter, the sellers of such Registrable
Securities), unlegended certificates representing ownership of the Registrable
Securities being sold, in such denominations as requested and (y) instruct any
transfer agent and registrar of the Registrable Securities to release any stop
transfer order with respect thereto.
(c) Return of Prospectuses. Each seller of Registrable
Securities hereunder agrees that upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 5.05(a)(viii), such
seller shall forthwith discontinue such seller's disposition of Registrable
Securities pursuant to the applicable registration statement and prospectus
relating thereto until such seller's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 5.05(a)(viii) and, if so directed
by the Company, deliver to the Company all copies, other than permanent file
copies, then in such seller's possession of the prospectus current at the time
of receipt of such notice relating to such Registrable Securities. In the event
the Company shall give such notice, the ninety (90)-day period during which such
registration statement must remain effective pursuant to this Agreement shall be
extended by the number of days during the period from the date of giving of a
notice regarding the happening of an event of the kind described in Section
5.05(a)(viii) to the date when all such sellers shall receive such a
supplemented or amended prospectus and such prospectus shall have been filed
with the Commission.
Section 5.06. Registration Expenses.
All expenses incident to the Company's performance of, or
compliance with, its obligations under this Agreement including, without
limitation, all registration and filing fees, all fees and expenses of
compliance with securities and "blue sky" laws (including, without limitation,
the fees and expenses of counsel for underwriters or placement or sales agents
in connection therewith), all printing and copying expenses, all messenger and
delivery expenses, all fees and expenses of underwriters and sales and placement
agents in connection therewith (excluding discounts and commissions and the fees
and expenses of counsel therefor), all fees and expenses of the Company's
independent certified public accountants and counsel (including, without
limitation, with respect to "comfort" letters and opinions) (collectively, the
"Registration Expenses") shall be borne by the Company; provided, however, that
in the case of a Piggyback Registration, all incremental costs resulting from
applicable federal and blue sky registration and filing fees, National
Association of Securities Dealers filing fees, the expenses and fees for
listing the securities to be registered on each securities exchange and included
in each established over-the-counter market on which similar securities issued
by the Company are then listed or traded or for listing on Nasdaq and
underwriting discounts and commissions allocable to each Stockholder selling
Registrable Securities shall be borne by such Stockholder. The Company shall be
responsible for the fees and expenses of one (1) legal counsel retained by all
of the Stockholders in the aggregate in
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connection with the sale of Registrable Securities. Notwithstanding the
foregoing, the Company shall not be responsible for the fees and expenses of
any additional counsel, or any of the accountants, agents or experts retained
by the Stockholders in connection with the sale of Registrable Securities. The
Company will pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties, the expense of any annual audit and the expense of any
liability insurance) (collectively, "Internal Expenses") and the expenses and
fees for listing the securities to be registered on each securities exchange
and included in each established over-the-counter market on which similar
securities issued by the Company are then listed or traded or for listing on
Nasdaq.
Section 5.07. Indemnification.
(a) By the Company. The Company agrees to indemnify, to the
fullest extent permitted by law, each holder of Registrable Securities being
sold, its officers, directors, employees and agents and each Person who controls
(within the meaning of the Securities Act) such holder or such an other
indemnified Person against all losses, claims, damages, liabilities and expenses
(collectively, the "Losses") caused by, resulting from or relating to any untrue
or alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or a fact necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished to the Company by such holder expressly for use therein or
by such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering and without limiting any of the
Company's other obligations under this Agreement, the Company shall indemnify
such underwriters, their officers, directors, employees and agents and each
Person who controls (within the meaning of the Securities Act) such underwriters
or such an other indemnified Person to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities being
sold.
(b) By Stockholders. In connection with any registration
statement in which a holder of Registrable Securities is participating, each
such holder will furnish to the Company in writing information regarding such
holder's ownership of Registrable Securities and its intended method of
distribution thereof and, to the extent permitted by law, shall indemnify the
Company, its directors, officers, employees and agents and each Person who
controls (within the meaning of the Securities Act) the Company or such an other
indemnified Person against all Losses caused by, resulting from or relating to
any untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary
28
29
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is caused by and contained in such information so
furnished in writing by such holder; provided, however, that each holder's
obligation to indemnify the Company hereunder shall be apportioned between each
holder based upon the net amount received by each holder from the sale of
Registrable Securities, as compared to the total net amount received by all of
the holders of Registrable Securities sold pursuant to such registration
statement, no such holder being liable to the Company in excess of such
apportionment.
(c) Notice. Any Person entitled to indemnification hereunder
shall give prompt written notice to the indemnifying party of any claim with
respect to which its seeks indemnification; provided, however, the failure to
give such notice shall not release the indemnifying party from its obligation,
except to the extent that the indemnifying party has been materially prejudiced
by such failure to provide such notice.
(d) Defense of Actions. In any case in which any such action
is brought against any indemnified party, and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof the indemnifying party will not (so long as it shall
continue to have the right to defend, contest, litigate and settle the matter in
question in accordance with this paragraph) be liable to such indemnified party
hereunder for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, supervision and monitoring (unless such indemnified
party reasonably objects to such assumption on the grounds that there may be
defenses available to it which are different from or in addition to the defenses
available to such indemnifying party, in which event the indemnified party
shall be reimbursed by the indemnifying party for the expenses incurred in
connection with retaining separate legal counsel). An indemnifying party shall
not be liable for any settlement of an action or claim effected without its
consent. The indemnifying party shall lose its right to defend, contest,
litigate and settle a matter if it shall fail to diligently contest such matter
(except to the extent settled in accordance with the next following sentence).
No matter shall be settled by an indemnifying party without the consent of the
indemnified party (which consent shall not be unreasonably withheld).
(e) Survival. The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf
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30
of the indemnified Person and will survive the transfer of the Registrable
Securities and the termination of this Agreement.
(f) Contribution. If recovery is not available under the
foregoing indemnification provisions for any reason or reasons other than as
specified therein, any Person who would otherwise be entitled to indemnification
by the terms thereof shall nevertheless be entitled to contribution with respect
to any Losses with respect to which such Person would be entitled to such
indemnification but for such reason or reasons. In determining the amount of
contribution to which the respective Persons are entitled, there shall be
considered the Persons' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission, and other equitable
considerations appropriate under the circumstances. It is hereby agreed that it
would not necessarily be equitable if the amount of such contribution were
determined by pro rata or per capita allocation. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not found guilty of
such fraudulent misrepresentation. Notwithstanding the foregoing, no
Stockholder shall be required to make a contribution in excess of the net amount
received by such holder from the sale of Registrable Securities.
ARTICLE VI
Miscellaneous
(a) Legends. Each of the Stockholders agrees
that substantially the following legend shall be placed on the certificates
representing any Shares owned by them:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS
SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION COMPLIES WITH THE PROVISIONS OF THE AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT DATED AS OF JUNE 30, 1997, A COPY OF WHICH IS
ON FILE WITH THE SECRETARY OF XXXXX WHEELS INTERNATIONAL, INC. AND IS
AVAILABLE WITHOUT CHARGE UPON WRITTEN REQUEST THEREFOR. THE HOLDER OF
THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE
BOUND BY ALL OF THE PROVISIONS OF THE AFORESAID AGREEMENT.
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31
From and after the date of this Agreement, any reference in any legend on any
certificate representing any Shares to the Stockholders Agreement shall be
deemed for all purposes to refer to this Agreement. The Company agrees to
remove the legend on the Shares upon the resale of such Shares in accordance
with the terms of this Agreement (other than pursuant to Section 4.01(a)(i) and
Section 4.01(b)(iii) hereof).
(b) Specific Performance. Each of the Stockholders
acknowledges and agrees that in the event of any breach of this Agreement, the
non-breaching party or parties would be irreparably harmed and could not be made
whole by monetary damages. The Stockholders hereby agree that in addition to
any other remedy to which they may be entitled at law or in equity, they shall
be entitled to compel specific performance of this Agreement in any action
instituted in any court of the United States or any state thereof having subject
matter jurisdiction for such action.
(c) Headings. The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or
construction of any provisions hereof.
(d) Entire Agreement. This Agreement and, other than with
respect to the Lemmerz Stockholders, the Subscription Agreement constitute the
entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein, and there are no restrictions, promises,
representations, warranties, covenants, conditions or undertakings with respect
to the subject matter hereof, other than those expressly set forth or referred
to herein. This Agreement and, other than with respect to the Lemmerz
Stockholders, the Subscription Agreement supersede all prior agreements and
understandings between the parties hereto with respect to the subject matter
hereof.
(e) Proxy. For so long as this Agreement is in effect, if
any Stockholder fails or refuses to vote that Stockholder's Shares pursuant to
this Agreement, then, without further action by such Stockholder, each other
Stockholder shall have an irrevocable proxy coupled with an interest to vote
such Stockholder's Shares in accordance with this Agreement, and each
Stockholder hereby grants to the other Stockholders such irrevocable proxy
coupled with an interest.
(f) Notices. All notices and other communications hereunder
shall be in writing and shall be delivered personally or by next-day courier or
telecopied with confirmation of receipt, to the parties at the addresses
specified below (or at such other address for a party as shall be specified by
like notice; provided that notices of change of address shall be effective only
upon receipt thereof). Any such notice shall be effective upon receipt, if
personally delivered or telecopied, or one day after delivery to a courier for
next-day delivery.
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If to the Company, to:
Xxxxx Wheels International, Inc.
00000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
U.S.A.
Attention: General Counsel
Telecopier: (000) 000-0000
With copies to: Xxxxx Wheels International, Inc.
00000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
U.S.A.
Telecopier: (000) 000-0000
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
X.X.X.
Attention: Xxxxxx X. Xxxxxx, Esquire
Telecopier: (000) 000-0000
and
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esquire
Telecopier: (000) 000-0000
If to JLL, to:
Xxxxxx Xxxxxxxxxx & Levy
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Mr. Xxxx Xxxx
Telecopier: (000) 000-0000
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33
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
X.X.X.
Attention: Xxxxxx X. Xxxxxx, Esquire
Telecopier: (000) 000-0000
If to Nomura, to:
Nomura Holding America, Inc.
Two World Financial Xxxxxx
Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Xx. Xxxxxx Xxxxx
Telecopier: (000) 000-0000
If to TSG, to:
TSG Capital Fund II, L.P.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
X.X.X.
Attention: Mr. Xxxxxxxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Xxxxx X. Xxxxxxx, Esquire
Telecopier: (000) 000-0000
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34
If to Argosy, to:
CIBC WG Argosy Merchant Fund II, LLC
1325 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Atention: Xx. Xxx Xxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Xxxxxxxx X. Xxxxxxx, Esquire
Telecopier: (000) 000-0000
If to Chase, to:
Chase Capital Partners
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Xx. Xxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
With a copy to:
X'Xxxxxxxx, Xxxxxx & Karabell
00 Xxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxx Soydam, Esquire
Telecopier: (000) 000-0000
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35
If to any Lemmerz Stockholder, to:
Herrn Xxxxx Xxxxx-Xxxxxxx
x/x Xxxxxxx Xxxxxxx XxxX
Xxxxxxxx 0000
53621 Konigswinter
Federal Republic of Germany
Telecopier: 49-2223-71-620
With copies to:
Xxxxxxxx & Partner
Xxxxxxxxxxxxx Xxxxx 000
00000 Xxxx,
Xxxxxxx Xxxxxxxx of Germany
Attention: Xx. Xxxxxxx Xxxxxxxx
Telecopier: 49-228-72543-10
and
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
0 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Xxxxxxx X. Xxxxx, Esquire
Telecopier: (000) 000-0000
(g) Applicable Law. The substantive laws of the State of New
York shall govern the interpretation, validity and performance of the terms of
this Agreement, regardless of the law that might be applied under applicable
principles of conflicts of laws. THE PARTIES HERETO WAIVE THEIR RIGHT TO A JURY
TRIAL WITH RESPECT TO DISPUTES HEREUNDER; ALL SUCH DISPUTES SHALL BE SETTLED BY
BINDING ARBITRATION PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION
ASSOCIATION IN NEW YORK CITY, NEW YORK AND THE ORDER OF SUCH ARBITRATORS SHALL
BE FINAL AND BINDING ON ALL PARTIES HERETO AND MAY BE ENTERED AS A JUDGMENT IN A
COURT HAVING JURISDICTION OVER THE PARTIES.
(h) Severability. The invalidity, illegality or
unenforceability of one or more of the provisions of this Agree- ment in any
jurisdiction shall not affect the validity,
35
36
legality or enforceability of the remainder of this Agreement in such
jurisdiction or the validity, legality or enforceability of this Agreement,
including any such provision, in any other jurisdiction, it being intended that
all rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
(i) Successors; Assigns. The provisions of this Agreement
shall be binding upon the parties hereto and their respective heirs, successors
and permitted assigns. Neither this Agreement nor the rights or obligations of
any Stockholder hereunder may be assigned, except in connection with the
transfer by a Stockholder of shares of Company Common Stock or shares of Company
Preferred Stock to a Permitted Transferee. Any such attempted assignment in
contravention of this Agreement shall be void and of no effect.
(j) Amendments. This Agreement may not be amended, modified
or supplemented unless such modification is in writing and signed by the Company
and the holders of at least 82.5% of the Shares outstanding on the date hereof
less any Shares subsequently Transferred other than to a Person described in
clauses (i) or (ii) of the definition of a Permitted Transferee.
(k) Waiver. Any waiver (express or implied) of any default
or breach of this Agreement shall not constitute a waiver of any other or
subsequent default or breach.
(l) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same Agreement.
(m) Recapitalization. In the event that any capital stock or
other securities are issued in respect of, in exchange for, or in substitution
of, any shares of Company Common Stock or Company Preferred Stock (other than
upon the conversion thereof) by reason of any reorganization, recapitalization,
reclassification, merger, consolidation, spin-off, partial or complete
liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the shares of Company Common Stock or Company
Preferred Stock (other than upon the conversion thereof) or any other change in
the Company's capital structure, appropriate adjustments shall be made to the
terms hereof if necessary to fairly and equitably preserve the original rights
and obligations of the parties hereto under this Agreement.
(n) Termination. Unless terminated earlier by the Company
and Stockholders owning the percentage of shares set forth in Article VI (j)
hereof, this Agreement shall terminate on July 2, 2004.
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37
(o) Effect. Except as specifically amended hereby, the
rights, interests and obligations of each Stockholder (other than any Lemmerz
Stockholder) under the Stockholders Agreement shall be deemed to have remained
in full force and effect in accordance with its terms through the date hereof.
[SIGNATURE PAGES FOLLOW]
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38
IN WITNESS WHEREOF, the undersigned hereby agree to
be bound by the terms and provisions of this Amended and Restated Stockholders
Agreement as of the date first above written.
XXXXX WHEELS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name:
Title:
XXXXXX XXXXXXXXXX & XXXX FUND II, L.P.
By: JLL ASSOCIATES II, L.P.,
its General Partner
By: /s/ Xxxx X. Xxxx
---------------------------------
Name:
Title:
CHASE EQUITY ASSOCIATES, a
California Limited Partnership
By: CHASE CAPITAL PARTNERS,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name:
Title:
CIBC WG ARGOSY MERCHANT FUND 2,
L.L.C.
By: /s/ Xxx Xxxxx
---------------------------------
Name:
Title:
00
XXXXXX XXXXXXX XXXXXXX, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name:
Title:
TSG CAPITAL FUND II, L.P.
By: TSG ASSOCIATES II, L.P.,
its General Partner
By: TSG ASSOCIATES II, INC.,
its General Partner
By: /s/ Cleveland A. Xxxxxxxxxx
----------------------------------
Name:
Title:
/s/ Xxxxxxx Xxxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxxx
---------------------------------
Xxxx Xxxxxx-Xxxxxx
/s/ Xxxxxxx Xxxxxxxx
---------------------------------
Xxxxxx Xxxxx-Xxxxxxx
/s/ Xxxxxxx Xxxxxxxx
---------------------------------
Xxxxx Xxxxx-Xxxxxxx
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40
EXHIBIT A
Column A Column B
-------- --------
Shares of Warrants to purchase
Name of Company Common Company
Stockholder Stock Owned (#) Common Stock Held (#)
----------- ------------------ ---------------------
JLL 9,634,172 1,825,378
TSG 2,812,500 67,500
Argosy 2,500,000 60,000
Chase 1,250,000* 30,000**
Nomura 937,500 22,500
--------------------
* Includes 159,026 shares of non-voting New Company Common Stock
** Consists of Warrants to purchase non-voting New Company Common Stock.
A-1
41
EXHIBIT B
Name of Shares of
Lemmerz Stockholder Company Preferred Stock
------------------- -----------------------
Xxxxxxxx Xxxxxxx 3,200,000
Xxxx Xxxxxx-Xxxxxx 25,000
Xxxxxx Xxxxx-Xxxxxxx 25,000
Xxxxx Xxxxx-Xxxxxxx 1,750,000
B-1
42
EXHIBIT C
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of ______________, between Xxxxx
Wheels International, Inc., a Delaware corporation (the "Company"), and
_______________ the ("Indemnitee").
WHEREAS, it is essential to the Company to retain and attract
as directors the most capable persons available;
WHEREAS, Indemnitee is a director of the Company;
WHEREAS, both the Company and Indemnitee recognize the
increased risk of litigation and other claims being asserted against directors
of public companies in today's environment;
WHEREAS, the Restated Certificate of Incorporation (the
"Charter") permits, and the By-laws (the "By-Laws") of the Company require, the
Company to indemnify its directors to the fullest extent permitted by law and
the Indemnitee has agreed to serve as a director of the Company in part in
reliance on such Charter and By-Laws;
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to enhance Indemnitee's service
to the Company in an effective manner, the increasing difficulty in obtaining
satisfactory director liability insurance coverage and Indemnitee's reliance on
the aforesaid Charter and By-Laws, and in part to provide Indemnitee with
specific contractual assurance that the protection afforded by such Charter and
By-Laws will be available to Indemnitee (regardless of, among other things, any
amendment to or revocation of the Charter and By-Laws or any change in the
composition of the Company's Board of Directors or acquisition transaction
relating to the Company), the Company wishes to provide in this Agreement for
the indemnification of and the advancing of expenses to Indemnitee to the
fullest extent (whether partial or complete) permitted by law and as set forth
in this Agreement, and, to the extent insurance is maintained, for the
continued coverage of Indemnitee under the Company's directors' liability
insurance policies;
NOW, THEREFORE, in consideration of the premises and of
Indemnitee continuing to serve the Company directly or, at its request, another
enterprise, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i)
any "person" (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended), other
than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock
of the Company, is or becomes the
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"beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company
representing 30% or more of the total voting power represented
by the Company's then outstanding Voting Securities (other
than Xxxxxx Xxxxxxxxxx & Levy Fund II, L.P. or any of its
affiliates), or (ii) during any period of two consecutive
years, individuals who at the beginning of such period
constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or
nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at
the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason
to constitute a majority thereof, or (iii) the stockholders of
the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or
consolidation which would result in the Voting Securities of
the Company outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at
least [80%] of the total voting power represented by the
Voting Securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or
the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of (in one transaction or a series
of transactions) all or substantially all the Company's
assets.
(b) Claim: any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether
instituted by the Company or any other party, that Indemnitee
in good faith believes might lead to the institution of any
such action, suit or proceeding, whether civil, criminal,
administrative, investigative or other.
(c) Expenses: include attorneys' fees and other costs, expenses
and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating
in (including on appeal), or preparing to defend, be a witness
in or participate in any Claim relating to any Indemnifiable
Event.
(d) Indemnifiable Event: any event or occurrence related to the
fact that Indemnitee is or was a director, officer, employee,
agent or fiduciary of the Company, or is or was serving at the
request of the Company as a director, officer, employee,
trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or
other enterprise, or by reason of anything done or not done by
Indemnitee in any such capacity.
(e) Independent Legal Counsel: an attorney or firm of attorneys,
selected in accordance with the provisions of Section 3, who
shall not have otherwise performed services for the Company,
any of its subsidiaries or Indemnitee within the last two
years (other than with respect to matters concerning the
rights of Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements).
(f) Reviewing Party: any appropriate person or body consisting of
a member or members of the Company's Board of Directors or any
other person or body
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appointed by the Board who is not a party to the particular
Claim for which Indemnitee is seeking indemnification, or
Independent Legal Counsel.
(g) Voting Securities: any securities of the Company which vote
generally in the election of directors.
2. Basic Indemnification Arrangement. (a) In the event
Indemnitee was, is or becomes a party to or witness or other participant in, or
is threatened to be made a party to or witness or other participant in, a Claim
by reason of (or arising in part out of) an Indemnifiable Event, the Company
shall indemnify Indemnitee to the fullest extent permitted by law as soon as
practicable, but in any event no later than thirty days after written demand is
presented to the Company, against any and all Expenses, judgments, fines,
penalties and amounts paid in settlement (including all interest, assessments
and other charges paid or payable in connection with or in respect of such
Expenses, judgments, fines, penalties or amounts paid in settlement) of such
Claim. If so requested by Indemnitee, the Company shall advance (within two
business days of such request) any and all Expenses to Indemnitee (an "Expense
Advance"). Notwithstanding anything in this Agreement to the contrary, except
as provided in Section 5 hereof, prior to a Change in Control, Indemnitee shall
not be entitled to indemnification or Expense Advances pursuant to this
Agreement in connection with any Claim initiated by Indemnitee unless the Board
of Directors has authorized or consented to the initiation of such Claim.
(b) Notwithstanding the foregoing, (i) the obligations of the
Company under Section 2(a) shall be subject to the condition that the Reviewing
Party shall not have determined (in a written opinion, in any case in which the
independent Legal Counsel referred to in Section 3 hereof is involved) that
Indemnitee would not be permitted to be indemnified under applicable law, and
(ii) the obligation of the Company to make an Expense Advance pursuant to
Section 2(a) shall be subject to the condition that, if, when and to the extent
that the Reviewing Party determines that Indemnitee would not be permitted to
be so indemnified under applicable law, the Company shall be entitled to be
reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all
such amounts theretofore paid; provided, however, that if Indemnitee has
commenced or thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should be indemnified
under applicable law, any determination made by the Reviewing Party that
Indemnitee would not be permitted to be indemnified under applicable law shall
not be binding and Indemnitee shall not be required to reimburse the Company
for any Expense Advance until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have been exhausted
or lapsed). If there has not been a Change in Control, the Reviewing Party
shall be selected by the Board of Directors, and, if there has been such a
Change in Control (other than a Change in Control which has been approved by a
majority of the Company's Board of Directors who were directors immediately
prior to such Change in Control), the Reviewing Party shall be the Independent
Legal Counsel referred to in Section 3 hereof. If there has been no
determination by the Reviewing Party or if the Reviewing Party determines that
Indemnitee substantively would not be permitted to be indemnified in whole or
in part under applicable law, Indemnitee shall have the right to commence
litigation in any court in the State of Delaware having subject matter
jurisdiction thereof and in which venue is proper seeking an initial
determination by the court or challenging any such deter-mination by the
Reviewing party or any aspect thereof, including the legal or factual bases
therefor, and the Company hereby consents to service of process and to appear
in any such proceeding. Any determination by the Reviewing Party otherwise
shall be conclusive and binding on the Company and Indemnitee.
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3. Change in Control. The Company agrees that, if there is a
Change in Control of the Company (other than a Change in Control which has been
approved by a majority of the Company's Board of Directors who were directors
immediately prior to such Change in Control), then with respect to all matters
thereafter arising concerning the rights of Indemnitee to indemnity payments
and Expense Advances under this Agreement or any other agreement or Charter or
By-law provision now or hereafter in effect relating to Claims for
Indemnifiable Events, the Company shall seek legal advice only from Independent
Legal Counsel selected by Indemnitee and approved by the Company (which
approval shall not be unreasonably withheld). Such counsel, among other
things, shall render its written opinion to the Company and Indemnitee as to
whether and to what extent the Indemnitee would be permitted to be indemnified
under applicable law. The Company agrees to pay the reasonable fees of the
Independent Legal Counsel referred to above and to fully indemnify such counsel
against any and all expenses (including attorneys' fees), claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
4. Indemnification for Additional Expenses. The Company shall
indemnify Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of such
request) advance such expenses to Indemnitee, which are incurred by Indemnitee
in connection with any action brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Company under this Agreement or any other
agreement or Charter or By-Law provision now or hereafter in effect relating to
Claims for Indemnifiable Events and/or (ii) recovery under any directors'
liability insurance policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
5. Partial Indemnity, Etc. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, judgments, fines, penalties and amounts paid in
settlement of a Claim but not, however, for all of the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled. Moreover, notwithstanding any other provision of
this Agreement, to the extent that Indemnitee has been successful on the merits
or otherwise in defense of any or all Claims relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.
6. Burden of Proof. In connection with any determination by the
Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified hereunder the burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.
7. No Presumptions. For purposes of this Agreement, the
termination of any claim, action, suit or proceeding, by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not
permitted by applicable law. In addition, neither the failure of the Reviewing
Party to have made a determination as to whether Indemnitee has met any
particular standard of conduct or had any particular belief, nor an actual
determination by the Reviewing Party that Indemnitee has not met such standard
of conduct or did not have such belief, prior to the commencement of legal
proceedings by Indemnitee to secure a judicial determination that Indemnitee
should be indemnified under applicable law shall be a defense to Indemnitee's
claim or create a presumption that Indemnitee has not met any particular
standard of conduct or did not have any particular belief.
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8. Nonexclusivity, Etc. The rights of the Indemnitee hereunder
shall be in addition to any other rights Indemnitee may have under the Charter,
By-Laws or the Delaware General Corporation Law or otherwise. To the extent
that a change in the Delaware General Corporation Law (whether by statute or
judicial decision) permits greater indemnification by agreement than would be
afforded currently under the Charter, By-Laws and this Agreement, it is the
intent of the parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by such change.
9. Liability Insurance. To the extent the Company maintains an
insurance policy or policies providing directors' liability insurance,
Indemnitee shall be covered by such policy or policies, in accordance with its
or their terms, to the maximum extent of the coverage available for any Company
director.
10. Period of Limitations. No legal action shall be brought and
no cause of action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a
legal action within such two-year period; provided, however, that if any
shorter period of limitations is otherwise applicable to any such cause of
action such shorter period shall govern.
11. Amendments, Etc. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
12. Subrogation. In the event of payment under this Agreement,
the Company shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all papers required and
shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.
13. No Duplication of Payments. The Company shall not be liable
under this Agreement to make any payment in connection with any Claim made
against Indemnitee to the extent Indemnitee has otherwise actually received
payment (under any insurance policy, Charter or By-law provision or otherwise)
of the amounts indemnifiable hereunder.
14. Binding Effect, Etc. This Agreement shall be binding upon and
insure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of the Company, spouses, heirs, executors and personal
and legal representatives. This Agreement shall continue in effect regardless
of whether Indemnitee continues to serve as a director of the Company or of any
other enterprise at the Company's request.
15. Severability. The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) is held by a court of
competent jurisdiction to be invalid, void or otherwise unenforce-able in any
respect, and the validity and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way
impaired and shall remain enforceable to the fullest extent permitted by law.
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16. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in such state without giving
effect to the principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement this ____ day of July, 1996.
XXXXX WHEELS INTERNATIONAL, INC.
By ___________________________________
Name:
Title:
_______________________________________
Indemnitee
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