Exhibit 10.32
AMENDMENT NO. 2 TO
THE PREFERRED STOCKHOLDERS AGREEMENT
THIS AMENDMENT NO. 2 TO THE PREFERRED STOCKHOLDERS AGREEMENT, dated
November 29, 2001 (the "Amendment"), is by and among COURT SQUARE CAPITAL
LIMITED, a Delaware corporation ("Court Square"), DRI GROUP LLC, a Delaware
limited liability company ("DRI Group"), BERKSHIRE HATHAWAY INC., a Delaware
corporation ("Berkshire"), the Individual Investors and DRESDNER KLEINWORT
CAPITAL PARTNERS 2001 LP, a Delaware limited partnership (the "Purchaser").
Court Square, DRI Group, Berkshire, the Individual Investors and the Purchaser
are sometimes referred to herein individually as a "Party" and collectively as
the "Parties."
Background
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A. Court Square, DRI Group, World Equity Partners, L.P., a
Delaware limited partnership ("WEP") and the Individual Investors are parties
to that certain Preferred Stockholder Agreement, dated March 14, 2001 (the
"Original Agreement").
B. The Original Agreement sets forth certain agreements and
understandings among the Parties thereto with respect to the stock of the
Company held by the Parties.
C. The Original Agreement was amended by Amendment No. 1 to the
Preferred Stockholders Agreement dated June 27, 2001 by and among the Parties
other than the Purchaser (the "First Amendment").
D. Delco Remy International, Inc., a Delaware corporation
(the "Company"), Court Square, WEP and the Purchaser have entered into that
certain Securities Purchase Agreement date of even date herewith (the "Purchase
Agreement"). Pursuant to the Purchase Agreement, Court Square shall sell to
the Purchaser, and the Purchaser shall purchase, 90,406.62 shares of the
Company's 12% Series A Cumulative Compounding Preferred Stock, par value $.01
per share (the "Series A Preferred Stock") and 97,808.33 shares of the
Company's Class C Common Stock, par value $.001 per share.
E. In connection with, and as a condition to, the transactions
contemplated by the Purchase Agreement, the Parties now desire to further amend
the Original Agreement in accordance with Section 2.2 thereof, as provided in
this Amendment.
Terms
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In consideration of the mutual covenants contained herein and
intending to be legally bound hereby, the Parties hereby agree as follows:
Section 1. Defined Terms. Capitalized terms not otherwise defined herein
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shall have the respective meanings ascribed to such terms in the Original
Agreement.
Section 2. Status of Purchaser. Upon execution and delivery of this
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Amendment, the Purchaser shall become a party to the Original Agreement, shall
constitute an "Investor" for all purposes under of the Original Agreement.
Section 3. Purchaser Permitted Transferees. The Original Agreement is
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hereby amended by adding a new Section 2.1(b)(viii) immediately after Section
2.1(b)(vii) of the Agreement as follows:
"(viii) in the case of Dresdner Kleinwort Capital Partners
2001 LP ("Dresdner") or its Permitted Transferees, (a) Dresdner
or any of its Affiliates, or (b) any limited partnership, limited
liability company or other investment vehicle that is sponsored
or managed (whether through the ownership of securities having a
majority of the voting power, as general partner or through the
management of investments) by Dresdner or its Affiliates or by
present employees of Dresdner or its Affiliates."
Section 4. Amendment and Modification. Section 2.2 of the Original
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Agreement is hereby stricken and replaced in its entirety with the following:
"Amendment and Modification. This Agreement may be amended or
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modified, or any provision hereof may be waived, provided that
such amendment or waiver is set forth in a writing executed by
(i) the holders of a majority of the Preferred Stock held by
Court Square and its Permitted Transferees (so long as Court
Square and its Permitted Transferees own in the aggregate at
least 10% of the outstanding Preferred Stock on a fully diluted
basis), (ii) the holders of a majority of the outstanding
Preferred Stock on a fully diluted basis (including Shares owned
by Court Square and its Permitted Transferees), (iii) only with
respect to any amendment, modification or waiver that would
materially adversely affect rights or obligations of Berkshire
Hathaway Inc. ("Berkshire") or its Permitted Transferees,
Berkshire (so long as Berkshire and its Permitted Transferees own
in the aggregate at least 10% of the outstanding Preferred Stock
on a fully diluted basis) and (vi) only with respect to
amendments of, or waivers of rights that would materially
adversely affect rights or obligations of Dresdner and its
Permitted Transferees, the holders of a majority of the Preferred
Stock held by Dresdner and its Permitted Transferees (so long as
Dresdner and its Permitted Transferees own in the aggregate at
least 2% of the outstanding Preferred Stock on a fully diluted
basis). Notwithstanding the foregoing, no amendment to this
Agreement that joins any transferee(s) of Shares as an "Investor"
and/or an "Institutional Investor" for all purposes hereunder
shall be deemed to materially adversely affect the rights or
obligations of the Investors,
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Berkshire and its Permitted Transferees or Dresdner and its
Permitted Transferees by reason of such joinder. No course of
dealing between or among any persons having any interest in this
Agreement will be deemed effective to modify, amend or discharge
any part of this Agreement or any rights or obligations of any
person under or by reason of this Agreement."
Section 5. Continued Effectiveness of Original Agreement. Except as
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specifically amended herein, all other terms and provisions of the Original
Agreement, as amended by the First Amendment, shall remain unchanged and in
full force and effect.
Section 6. Incorporation of Amendment. On and after the date hereof each
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reference in the Original Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import shall be a reference to the Original Agreement
as amended the First Amendment and hereby.
Section 7. Effectiveness. This Amendment shall be effective when
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executed by Court Square, Berkshire and the Purchaser.
Section 8. Miscellaneous.
Section 8.1. Entire Agreement. The agreement of the Parties,
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which is comprised of this Amendment, the First Amendment and the Original
Agreement, sets forth the entire agreement and understanding between the
Parties and supersedes any prior agreement or understanding, written or oral,
relating to the subject matter of this Amendment, the First Amendment and the
Original Agreement.
Section 8.2. Governing Law. The validity, performance,
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construction and effect of this Amendment shall be governed by and construed in
accordance with the internal law of Delaware, without giving effect to
principles of conflicts of law.
Section 8.3. Headings. The headings in this Amendment are
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for convenience of reference only and shall not constitute a part of this
Amendment, nor shall they affect their meaning, construction or effect.
Section 8.4. Counterparts. This Amendment may be executed in
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two or more counterparts and by the Parties in separate counterparts, each of
which when so executed shall be deemed to be an original, and all of which
taken together shall constitute one and the same instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Parties have executed this Amendment upon
the day and year first above written.
DELCO REMY INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief
Executive Officer
COURT SQUARE CAPITAL LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
DRI GROUP LLC
By:
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Name:
Title:
BERKSHIRE HATHAWAY INC.
By: /s/ ▇▇▇▇ ▇. Hamburg
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Name: ▇▇▇▇ ▇. Hamburg
Title: Vice President
IN WITNESS WHEREOF, the Parties have executed this Amendment upon
the day and year first above written.
MANAGEMENT INVESTORS:
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Grez-Doiceau, Belgium
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IN WITNESS WHEREOF, the Parties have executed this Amendment upon
the day and year first above written.
MANAGEMENT INVESTORS:
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DAISY FARM LIMITED PARTNERSHIP
By:______________________________
Name:
Title:
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IN WITNESS WHEREOF, the Parties have executed this Amendment upon
the day and year first above written.
CONTINUING INVESTORS:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ LIVING TRUST DATED
MARCH 6, 1990
By:______________________________
Name:
Title:
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MARCH 6, 1990
By:______________________________
Name:
Title:
IN WITNESS WHEREOF, the Parties have executed this Amendment upon
the day and year first above written.
PURCHASER:
DRESDNER KLEINWORT CAPITAL
PARTNERS 2001 LP
By: Dresdner Kleinwort Capital 2001 LLC
Its: General Partner
By: Private Equity Employees II LLC
Its: Managing Member
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Its: Authorized Person
