EXHIBIT 10.23
AMENDMENT NO. 2
TO
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
This Amendment No. 2 (this "Amendment"), effective as of
August 1, 2003, to the Amended and Restated Stockholders' Agreement (the
"Agreement") effective as of November 28, 2000, as amended by Amendment No. 1
dated January 31, 2003, by and among MSX INTERNATIONAL, INC., a Delaware
corporation (the "Company"), COURT SQUARE CAPITAL LIMITED, a Delaware
corporation ("Court Square"), CITICORP MEZZANINE III, L.P., a Delaware limited
partnership ("CMF"), each of the individuals or entities whose name appears on
the signature pages hereto under the heading "Management Group" (individually, a
"Management Group Member" and, collectively, the "Management Group"), each of
the individuals or entities whose name appears on the signature pages hereto
under the heading "CVC Group" (individually, a "CVC Stockholder" and,
collectively, the "CVC Stockholders") and each of the other individuals whose
name appears on the signature pages hereto. Capitalized terms are used as
defined in Article I of the Agreement.
RECITALS
WHEREAS, certain of the Stockholders, certain former
stockholders of the Company and the Company entered into a Stockholders'
Agreement, dated as of January 3, 1997, as amended (the "Original Agreement"),
to regulate certain aspects of their relationship and to provide for, among
other things, restrictions on the transfer or other disposition of securities of
the Company and matters relating to the corporate governance of the Company and
its Subsidiaries;
WHEREAS, in connection with the transfer of shares of Common
Stock and Series A Preferred by MascoTech, Inc., a Delaware corporation, to
Court Square pursuant to a Stock Purchase Agreement, dated as of August 1, 2000,
by and between CVC and MascoTech, as amended, and the transfer of shares of
Common Stock and Series A Preferred by CVC to Court Square pursuant to a Stock
Purchase Agreement, dated as of November 28, 2000, by and between CVC and Court
Square, the Stockholders and the Company amended and restated the Original
Agreement, all in accordance with Section 7.2 of the Original Agreement;
WHEREAS, in connection with the Transfer of shares of Common
Stock and Series A Preferred by one of the Institutional Stockholders, the
Stockholders and the Company amended the Agreement to replace in its entirety
the defined term "Permitted Transferee," in accordance with Section 7.2 of the
Agreement; and
WHEREAS, in connection with the issuances to CMF by each of
the Company and MSX International Limited, an indirect, wholly-owned subsidiary
of the Company, of 11.5% senior secured notes in the aggregate principal amount
of $25 million, the Company has agreed
to issue a stock purchase warrant (together with all warrants issued in
substitution or replacement thereof, the "CMF Warrant") to purchase the number
of Warrant Shares (as defined in the CMF Warrant) that is specified in the CMF
Warrant pursuant to a Warrant Purchase Agreement, dated as of the date hereof,
by and between the Company and CMF (as amended, restated or modified from time
to time, the "Warrant Agreement"), each of the Company and certain of the
Institutional Stockholders desire to amend provisions of the Agreement, in
accordance with Section 7.2 of the Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE 1
AMENDMENT
1.1 Observer's Rights. Section 5.6(a) of the Agreement shall be deleted
in its entirety and replaced with the following
"(a) In the event the Institutional Stockholders
elect not to exercise, or are prohibited by applicable law from
exercising, their rights to designate the Institutional Directors, or
once appointed, the Institutional Stockholders desire to remove all of
the Institutional Directors, the Institutional Stockholders shall have
the right to have one (1) individual (each, an "Observer") attend any
meeting of the Board or any committee thereof. So long as CMF owns at
least 1% of the Common Stock outstanding (on a fully diluted basis)
(assuming full exercise of the CMF Warrant), CMF shall have the right
to have one (1) Observer attend any meeting of the Board or any
committee thereof. In addition, the Institutional Stockholders shall
have the right to appoint an Observer to the board of directors of any
Subsidiary in lieu of designating a director thereto as provided by
Section 5.5."
1.2 Entire Agreement; Amendments. Section 7.2 shall be amended by
adding the following clause (c) to the end of the first sentence thereof:
"and (c) any amendment, modification or supplement
that adversely affects CMF's rights under Section 5.6(a) shall require
the consent of CMF."
1.3 Notices. Section 7.17(a) of the Agreement shall be amended by
deleting the existing clause (iv) and replacing it with the following clause
(iv) and by adding the following clause (v) to the end thereof:
"(iv) If to CMF, to:
Citicorp Mezzanine III, L.P.
399 Park Avenue - 14th Floor
New York, New York 10043
Facsimile No.: 212-888-2940
Attn: Byron Knief
with copies to:
Kirkland & Ellis LLP
Citigroup Center
153 East 53rd Street
New York, New York 10022-4611
Facsimile No.: 212-446-4900
Attn: Andrew Lindholm
(v) If to any other Additional Shareholder, to the
address of such person set forth on the stock records of the Company."
ARTICLE 2
MISCELLANEOUS
2.1 Joinder Agreement. In consideration of the issuance of the CMF
Warrant by the Company, CMF agrees that:
(a) as of the date hereof, in accordance with Section 6.2 of
the Agreement, it shall become a party to the Agreement and shall be fully bound
by, and subject to, all of the covenants, terms and conditions of the Agreement
as though an original party thereto and shall be deemed an "Additional
Stockholder" for all purposes thereof, and shall possess and be subject to the
rights, duties and obligations of an "Additional Shareholder" pursuant to the
terms of the Agreements; and
(b) For avoidance of doubt, (i) the Warrant Shares are
"Restricted Securities" (as such term is used in the Agreement) and any holder
of the CMF Warrant (whether or not the CMF Warrant is exercised) or Warrant
Shares is a "Stockholder" (as such term is defined in the Agreement), (ii) the
terms "Class A Common," "Class B Common" and "Common Stock" (as such terms are
used in the Agreement) include the Warrant Shares and (iii) a "Permitted
Transferee" (as such term is used in the Agreement) of the undersigned shall
also include its limited partners, general partners and "Affiliates" (as such
term is defined in the Agreement).
2.2 Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of New York,
except to the extent that the General Corporation Law of the State of Delaware
applies as a result of the Company being incorporated in the State of Delaware,
in which case such General Corporation Law shall apply.
[Signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
MSX INTERNATIONAL, INC.
By: /s/ Frederick K. Minturn
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Name: Frederick K. Minturn
Title: Vice President
COURT SQUARE CAPITAL LIMITED
By: /s/ Michael A. Delaney
------------------------------------
Name: Michael A. Delaney
Title: Vice President
CITICORP MEZZANINE III, L.P.
By: Citicorp Capital Investors, Ltd.
Its:General Partner
/s/ Byron L. Knief
------------------------------------
Name: Byron L. Knief
Title:President
MANAGEMENT STOCKHOLDERS
Billig Family Limited Partnership
By: /s/ E.H. Billig
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Name: E.H. Billig
Title: Trustee
/s/ Frederick K. Minturn
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Frederick K. Minturn
/s/ Thomas Stallkamp
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Thomas Stallkamp
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John W. Risk
Kyung Ae Bae and Ralph L. Miller, Trustees
under Trust Agreement, dated October 16,
1989, between Kyung Ae Bae, Settlor, and
Kyung Ae Bae, Trustee
By:
------------------------------------
Name:
Title:
CVC GROUP
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Richard M. Cashin
Natasha Partnership
By:
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Name:
Title:
63BR Partnership
By:
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Name:
Title:
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Noelle Doumar
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William T. Comfort
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David Y. Howe
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John D. Weber
DFT Family LP 94
By:
-----------------------------------
Name:
Title:
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Charles E. Corporening
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Paul C. Schorr IV
/s/ Michael A. Delaney
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Michael A. Delaney
Alchemy, L.P.
By:
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Name:
Title:
Thomas F. McWilliams Flint Trust
By:
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Name: Jeanne Blasberg, Trustee
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M. Saleem Muqaddam
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Joseph Silvestri
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David F. Thomas
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James A. Urry
CITICORP VENTURE CAPITAL EQUITY PARTNERS,
L.P.
By: CVC PARTNERS LLC,
its General Partner
By: CITICORP VENTURE CAPITAL GP
HOLDINGS, LTD.
By: /s/ Michael A. Delaney
---------------------------
Name: Michael A. Delaney
Title: Vice President
CVC EXECUTIVE FUND LLC
By: CITICORP VENTURE CAPITAL GP
HOLDINGS, LTD.
By: /s/ Michael A. Delaney
---------------------------
Name: Michael A. Delaney
Title: Vice President
CVC/SSB EMPLOYEE FUND, L.P.
By: CVC PARTNERS LLC,
its General Partner
By: CITICORP VENTURE CAPITAL GP
HOLDINGS, LTD.
By: /s/ Michael A. Delaney
---------------------------
Name: Michael A. Delaney
Title: Vice President
ADDITIONAL MANAGEMENT STOCKHOLDERS
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Roger Fridholm
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Kenneth Sommer
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John W. Risk
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Thomas T. Stallkamp
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Carol Creel
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David A. Crittenden
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Cynthia Dauphinais
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Donald R. Fields
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Kevin D. Kyles
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Donald A. Leith
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Elie Matalon
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William R. Risk
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Gary Sands
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Gary J. Valentz
Bruce S. Wagner Revocable Living Trust
By:
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Name: Bruce S. Wagner
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Paul J. Wagner
Billig Family Limited Partnership
By:
-----------------------------------
Name:
L.M. Gardner, L.L.C.
By:
-----------------------------------
Name:
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Richard M. Cashin
/s/ Frederick K. Minturn
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Frederick K. Minturn