EXHIBIT 10.3
SECOND STOCK PURCHASE AGREEMENT
by and among
TRW AUTOMOTIVE HOLDINGS CORP.,
NORTHROP GRUMMAN CORPORATION
and
RICHMOND U.K. INC.
SECOND STOCK PURCHASE AGREEMENT
This SECOND STOCK PURCHASE AGREEMENT ("Agreement") is made this 8th
day of March, 2005, by and among TRW AUTOMOTIVE HOLDINGS CORP., a Delaware
corporation (the "Company"), NORTHROP GRUMMAN CORPORATION, a Delaware
corporation ("Northrop Grumman"), and RICHMOND U.K. INC., a Delaware corporation
(together with Northrop Grumman, "Seller").
RECITALS
WHEREAS, Seller desires to sell to the Company 2,000,000 shares (the
"Shares") of common stock, par value $0.01 per share, of the Company (the
"Common Stock") pursuant to the terms of this Agreement; and
WHEREAS, the Company desires to purchase the Shares pursuant to the
terms of this Agreement;
NOW, THEREFORE, in order to consummate said transactions and in
consideration of the mutual agreements set forth herein and for good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1. SALE OF SHARES; PURCHASE PRICE.
Section 1.1 Sale of Shares. On the terms and subject to the
conditions set forth in this Agreement and on the basis of the representations,
warranties, covenants and agreements herein contained, Seller shall sell,
transfer, convey and deliver to the Company, and the Company shall purchase, on
the Closing Date (as defined below), the Shares.
Section 1.2 Consideration; Closing Date Cash Payment.
(a) The purchase price to be paid for the Shares and for the
agreements set forth herein shall be $39,300,000.00 (the "Purchase
Price").
(b) On the Closing Date:
(i) Seller shall deliver to the Company a certificate or
certificates representing the Shares duly endorsed in blank, or
accompanied by stock powers duly executed in blank, in proper form for
transfer free and clear of any mortgage, claim, lien, encumbrance,
conditional sales or other title retention agreement, right of first
refusal, preemptive right, pledge, option, charge, security interest or
other similar interest, easement, judgment or imperfection of title of any
nature whatsoever (each, an "Encumbrance"). Seller will instruct the
transfer agent to cause the certificate or certificates representing the
Shares to be faxed to the Company at least twenty-four hours prior to the
Closing Date and, prior to the Closing Date, will have delivered
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executed stock powers transferring such Shares to the Company effective
upon the completion of the transactions contemplated by this Agreement.
(ii) The Company shall pay the Purchase Price to Seller by wire
transfer of Federal (same-day) funds to the account specified in writing
by Seller to the Company prior to the Closing (as defined below).
Section 1.3 Closing. Subject to the satisfaction or waiver of the
conditions specified herein, the closing of the purchase and sale of the Shares
(the "Closing") shall take place at the offices of the Company on March 11,
2005, or at such other time and place as shall be mutually agreeable to the
parties hereto. The date of the Closing is referred to herein as the "Closing
Date." The Closing shall be deemed to be effective as of the close of business
on the Closing Date. Either Seller or the Company may terminate this Agreement
if the Closing has not occurred by March 31, 2005 without incurring any
additional liability provided that the terminating party has in writing (a)
satisfied all of its conditions to Closing as set forth herein and (b) complied
with all of its obligations under this Agreement .
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE
COMPANY.
A. Representations and Warranties of Seller.
Seller hereby represents and warrants to the Company as follows:
Section 2.1 Authority. Seller has the full right, power and
authority to enter into this Agreement and to sell, transfer and deliver the
Shares to be sold by Seller hereunder. The execution and delivery of this
Agreement and the sale and delivery of the Shares to be sold by Seller and the
consummation of the transactions contemplated herein and compliance by Seller
with its obligations hereunder have been duly authorized by Seller and do not
and will not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any tax, lien, charge or encumbrance upon the
Shares to be sold by Seller or any property or assets of Seller pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
license, lease or other agreement or instrument to which Seller is a party or by
which Seller may be bound, or to which any of the property or assets of Seller
is subject, nor will such action result in any violation of the provisions of
the Charter or By-laws or other organizational instrument of Seller or any
applicable treaty, law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over Seller or any of its properties.
Section 2.2 Holder of Shares; Title to Shares. Seller holds and will
hold at the Closing the Shares to be sold by Seller hereunder, free and clear of
any Encumbrance of any kind, other than pursuant to this Agreement; such Shares
are certificated and are not held in any securities account or by or through any
securities intermediary within the meaning of the Uniform Commercial Code as in
effect in the State of New York ("NYUCC"); Seller has, and, at the Closing will
have, full right, power
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and authority to hold, sell, transfer and deliver the Shares to be sold by
Seller pursuant to this Agreement, and upon delivery of such Shares and payment
of the Purchase Price therefor as herein contemplated, assuming the Company has
no written notice of any adverse claim, the Company will be a protected
purchaser (as defined in the NYUCC) with respect to the Shares purchased by it
from Seller, and the Company will acquire the interest of Seller in such Shares
free and clear of any Encumbrance.
Section 2.3 Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration, qualification or decree
of, any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by Seller of its obligations
hereunder, or in connection with the sale and delivery of the Shares hereunder
or the consummation of the transactions contemplated by this Agreement.
B. Representations and Warranties of the Company.
The Company hereby represents and warrants to Seller as follows:
Section 2.4 Authority. The Company has the full right, power and
authority to enter into this Agreement and to purchase the Shares to be sold by
Seller hereunder. The execution and delivery of this Agreement and the purchase
of the Shares to be sold by Seller and the consummation of the transactions
contemplated herein and compliance by the Company with its obligations hereunder
have been duly authorized by the Company and do not and will not, whether with
or without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Shares to be
purchased by the Company or any property or assets of the Company pursuant to
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which the Company is a
party or by which the Company may be bound, or to which any of the property or
assets of the Company is subject, nor will such action result in any violation
of the provisions of the Second Amended and Restated Certificate of
Incorporation or Third Amended and Restated By-laws of the Company or any
applicable treaty, law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its properties.
Section 2.5 Restricted Securities. The Shares have not been
registered under the Securities Act and may not be offered or sold in the United
States or to, or for the account or benefit of, U.S. Persons (within the meaning
of the Securities Act) except pursuant to registration under the Securities Act
or an exemption from or in a transaction not subject to, the registration
requirements of the Securities Act.
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ARTICLE 3. CONDITIONS TO CLOSING
Section 3.1 Conditions of the Company. The obligations of the
Company to consummate the transactions contemplated hereby shall be subject to
the fulfillment, at or prior to the Closing Date, of the following conditions:
(a) The representations and warranties of Seller contained in this
Agreement shall be true and correct in all respects at and as of the
Closing Date as if made at and as of such date.
(b) Seller shall have furnished or caused to be furnished to the
Company at the Closing a certificate of an officer or other authorized
individual of Seller as to the accuracy of the representations and
warranties of Seller herein at and as of such Closing Date and as to the
performance by Seller of all of its obligations hereunder to be performed
at or prior to such Closing Date.
(c) The sale of Shares contemplated by the Stock Purchase and
Registration Rights Agreement, dated the date hereof, between the Company
and Certain Investment Advisory Accounts of Wellington Management Company,
llp shall have been completed.
(d) The waiver, dated the date hereof, relating to potential
conflicts under the Stockholders Agreement (as defined below), by and among the
Company, the Seller, and Automotive Investors LLC, shall have been executed.
Section 3.2 Conditions of Seller. The obligations of Seller to
consummate the transactions contemplated hereby shall be subject to the
fulfillment, at or prior to the Closing Date, of the following conditions:
(a) The representations and warranties of the Company contained in
this Agreement shall be true and correct in all respects at and as of the
Closing Date as if made at and as of such date.
(b) The Company shall have furnished or caused to be furnished to
Seller at the Closing a certificate of a Vice President of the Company as
to the accuracy of the representations and warranties of the Company
herein at and as of such Closing Date and as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to
such Closing Date.
(c) The Sale of Shares contemplated by the Stock Purchase and
Registration Rights Agreement, dated the date hereof, between the Company
and Certain Investment Advisory Accounts of Wellington Management Company,
llp shall have been completed.
(d) The waiver, dated the date hereof, relating to potential
conflicts under the Stockholders Agreement (as defined below), by and among the
Company, the Seller, and Automotive Investors LLC, shall have been executed.
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ARTICLE 4. COVENANTS.
Section 4.1 Expenses. The Company, on the one hand, and Seller, on
the other hand, shall each bear the expenses incurred by it in connection with
the transactions contemplated herein.
Section 4.2 Stockholders Agreement. The Company covenants and agrees
with Seller that the agreements and transactions set forth herein shall
discharge the obligations of the Company and Automotive Investors L.L.C. ("AI
LLC") set forth in Sections 5.1 and 5.2 of the Second Amended and Restated
Stockholders Agreement (the "Stockholders Agreement"), by and among the Company,
AI LLC and Seller, with respect to the Priority Shares (as defined in the
Stockholders Agreement) and Seller waives any and all rights thereunder with
respect to the Priority Shares. Promptly following the Closing, the Company, AI
LLC and Seller shall amend and restate the Stockholders Agreement to (a) delete
the obligations of the Company and AI LLC under Sections 5.1 and 5.2 of the
Stockholders Agreement with respect to the Priority Shares and (b) provide that
Seller shall vote its remaining shares of Common Stock only in accordance with
the instructions provided by AI LLC.
ARTICLE 5. MISCELLANEOUS.
Section 5.1 Notices.
(a) All notices, requests, demands and other communications
hereunder shall be in writing (including telecopy or similar writing) and
shall be given,
If to Seller:
Northrop Grumman Corporation
1840 Century Park East
Los Angeles, California
90067
Attention: Corporate Vice President and General Counsel
Facsimile No.: (310) 556-4558
and
Richmond U.K. Inc.
c/o Northrop Grumman Corporation
1840 Century Park East
Los Angeles, California 90067
Attention: Corporate Vice President and General Counsel
Facsimile No.: (310) 556-4558
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If to Company:
TRW Automotive Holdings Corp.
12001 Tech Center Drive
Livonia, Michigan 48150
Attention: Executive Vice President and General Counsel
Facsimile: (734) 855-2473
or to such other address or telecopy number and with such other copies as
such party may hereafter specify for the purpose of notice to the other
party.
Section 5.2 Assignability; Parties in Interest. This Agreement shall
not be assignable by any of the parties hereto unless mutually agreed to in
writing by the parties hereto, provided that no such assignment shall relieve
the assignor of its obligations hereunder. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. This Agreement is for the sole and exclusive
benefit of the parties to this Agreement and their successors and assigns and
nothing in this Agreement is intended to confer, expressly or by implication,
upon any other person any legal or equitable rights, remedies or claims under or
by reason of this Agreement.
Section 5.3 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 5.4 Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement shall become effective when each party shall
have received a counterpart signed by the other party.
Section 5.5 Publicity. The Company and Seller agree that press
releases and other announcements (including to employees of, and any entities or
persons having business dealings with, the Company) with respect to the
transactions contemplated hereby shall be subject to mutual agreement; provided,
however, that either party may make such announcements as, on the advice of its
counsel, such party is required to make pursuant to applicable law or the
requirements of a stock exchange or other applicable self-regulatory
organization, but in such event such party shall, to the extent practicable,
give the other party reasonable prior notice and an opportunity to comment on
the proposed announcement.
Section 5.6 Complete Agreement. This Agreement and the documents
delivered pursuant hereto or referred to herein contain the entire agreement
between the parties hereto with respect to the transactions contemplated herein
and supersede all previous negotiations, commitments and writings.
Section 5.7 Amendments and Waivers. The Company and Seller may (a)
extend the time for the performance of any of the obligations or other acts of
the parties hereto, (b) waive any inaccuracies in the representations and
warranties contained in this Agreement or in any or documents delivered pursuant
hereto, (c) waive compliance with any of the covenants or agreements contained
in this Agreement or (d) amend this Agreement, if and only, in the case of an
extension or amendment, if such action is set forth in a written agreement
signed by both parties that specifically refers to the
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provision of this Agreement to be extended or amended, or, in the case of a
waiver, if such waiver is signed by the party against whom the waiver is to be
effective and the writing specifically refers to the provision of this Agreement
to be waived..
Section 5.8 Further Assurances. Each party hereto agrees, to the
extent reasonable, to execute any and all documents and to perform such other
acts as may be necessary or expedient to further the purposes of this Agreement
and the transactions contemplated hereby.
Signatures follow on page S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
NORTHROP GRUMMAN CORPORATION
By: /s/ Mark Rabinowitz
-------------------------------------
Name: Mark Rabinowitz
Title: Asst. Treasurer
RICHMOND U.K. INC.
By: /s/ Mark Rabinowitz
-------------------------------------
Name: Mark Rabinowitz
Title: Authorized Representative
TRW AUTOMOTIVE HOLDINGS CORP.
By: /s/ David L. Bialosky
--------------------------------------
Name: David L. Bialosky
Title: Executive Vice President
and General Counsel