1
Exhibit 10.24
FIRST AMENDMENT, WAIVER AND CONSENT dated as of March 31, 1994 (this
"Amendment") to the Amended and Restated Stockholders and Registration Rights
Agreement dated as of September 27, 1991 (the "Agreement"), among Lear Seating
Corporation (formerly LSS Holdings Corporation), a Delaware corporation (the
"Company"), Lehman Brothers Merchant Banking Portfolio Partnership L.P.
(formerly Shearson Lehman Hutton Merchant Banking Portfolio Partnership L.P.),
a Delaware limited partnership, Lehman Brothers Offshore Investment
Partnership--Japan L.P. (formerly Shearson Lehman Hutton Offshore Investment
Partnership--Japan L.P.), a Bermuda limited partnership, Lehman Brothers
Offshore Investment Partnership L.P. (formerly Shearson Lehman Hutton Offshore
Investment Partnership L.P.), a Bermuda limited partnership, and Lehman
Brothers Capital Partners II, L.P. (formerly Shearson Lehman Hutton Capital
Partners II, L.P.), a Delaware limited partnership (each a "Lehman Partnership"
and, collectively, the "Lehman Group"), Lehman Brothers Merchant Banking
Partners Inc. (formerly Shearson Lehman Hutton Merchant Banking Partners,
Inc.), a Delaware corporation, as the Lehman Group Representative (the "Lehman
Group Representative"), FIMA Finance Management Inc., a British Virgin Islands
corporation ("FIMA"), and the parties listed on Schedule A to the Agreement or
who become Management Investors pursuant to Section 6.10 thereof (the
"Management Investors" and, together with the Lehman Group and FIMA, the
"Investors").
The parties hereto agree as follows:
SECTION 1. Amendment to Section 1.1. The following definition shall be
added to Section 1.1 of the Agreement:
"Substantial Sale" shall mean a sale or other disposition of outstanding
Shares beneficially held by a Holder in a single transaction or series of
related transactions that would result in the acquisition from such Holder by a
single Third Party of beneficial ownership of more than 5% of the aggregate
then outstanding Shares and Shares issuable in respect of then outstanding
Share Equivalents.
2
SECTION 2. Amendment to Section 2.4. The first sentence of Section 2.4(a)
of the Agreement shall be deleted and replaced with the following:
"If any Lehman Partnership or FIMA or any of its respective Permitted
Transferees (the "Section 2.4 Transferor") desires (i) to offer any of the
Shares then owned by it in a Substantial Sale other than to any of such
Permitted Transferees or (ii) to consummate an Exit Event (including,
without limitation, one pursuant to Section 2.6), the Lehman Group
Representative (if the Section 2.4 Transferor shall be a Lehman Partnership
or any of its Permitted Transferees) or FIMA (if the Section 2.4 Transferor
shall be FIMA or any of its Permitted Transferees) shall provide a written
notice (a "Transfer Notice") to FIMA or the Lehman Group Representative, as
the case may be, with a copy to Holdings, which notice shall state the
number of Shares proposed to be offered (or transferred, sold or disposed of
in connection with an Exit Event) by the Section 2.4 Transferor (the
"Transfer Stock"), the percentage of the total number of Shares beneficially
owned by the Section 2.4 Transferor represented by the Transfer Stock, the
price (which shall be a cash price, unless the Section 2.4 Transferor shall
have received a bona fide offer for the Shares subject to such Substantial
Sale or Exit Event which is not an all cash offer, in which case the
Transfer Notice shall include a good faith, reasonable calculation of the
present value of any consideration other than cash) at which the Transfer
Stock is proposed to be offered (or transferred, sold or disposed of) and any
other terms or conditions of the proposed transaction and shall also contain
an offer (a "Pre-emptive Offer") to sell the Transfer Stock to FIMA (if the
Section 2.4 Transferor shall be a Lehman Partnership or any of its Permitted
Transferees) or to the Lehman Group (if the Section 2.4 Transferor shall be
FIMA or any of its Permitted Transferees) (the offeree of a Pre-emptive
Offer, the "Section 2.4 Offeree") for all cash at a price equal to the price
(including the present value of such consideration other than cash so
calculated) and upon substantially the same terms as the terms contained in
such Transfer Notice."
3
3
SECTION 3. Amendment to Section 2.5. The first two sentences of Section
2.5(a) of the Agreement shall be deleted and replaced with the following:
"None of the Lehman Partnerships or FIMA or any of their respective
Permitted Transferees shall, directly or indirectly, sell any of its Shares
in a Substantial Sale unless the terms and conditions of such Substantial
Sale shall include an offer to each of the other Holders and their
respective Permitted Transferees (including, in the case of a Substantial
Sale by any Lehman Partnership or any of its Permitted Transferees, an offer
to FIMA and its Permitted Transferees and in the case of a Substantial Sale
by FIMA or any of its Permitted Transferees, an offer to the Lehman
Partnerships and their respective Permitted Transferees) (the "Section 2.5
Offerees"), to include, at the option of the Section 2.5 Offeree, in such
Substantial Sale such number of Shares owned by each such Section 2.5
Offeree as determined in accordance with Section 2.5(b). If any Lehman
Partnership or FIMA or any of their respective Permitted Transferees (as
applicable, the "Section 2.5 Transferor") receives a bona fide offer or
offers to purchase or otherwise acquire (a "Section 2.5 Transfer Offer") its
Shares in a Substantial Sale (the "Section 2.5 Transfer Stock") that the
Section 2.5 Transferor decides to accept, the Section 2.5 Transferor shall
cause the Section 2.5 Transfer Offer to be reduced to writing and shall
provide written notice (the "Section 2.5 Transfer Notice") of such Section
2.5 Transfer Offer to each of the Section 2.5 Offerees in the manner set
forth in this Section 2.5."
SECTION 4. Amendment to Section 2.7. Section 2.7(a) of the Agreement shall
be deleted and replaced in its entirety with the following:
"Section 2.7. Required Transfers of Management Shares. (a) Upon the
effective date of the termination (the "Termination") of the employment with
Holdings and its subsidiaries of any Management Investor (whether or not such
Management Investor then beneficially owns any Shares) (the "Terminated
Holder") prior to the earlier of (x) the fifth anniversary of the Closing
Date and (y) the existence of a Public
4
4
Market for the Shares at any time after the third anniversary of the Closing
Date for Cause (as defined below) or upon the resignation of the Terminated
Holder without Good Reason (as defined below), all Shares beneficially owned
by such Holder or the personal representative of such Holder and the
Permitted Transferees of such Holder, including all Shares then issuable in
respect of the Share Equivalents owned by such Holder or the personal
representative of such Holder and such Permitted Transferees which are then
vested and exercisable and not terminated (collectively, the "Terminated
Shares"), shall be subject to a purchase option exercisable immediately by
Holdings at the lower of Cost (as defined below) or Fair Market Value (as
defined below) as of the date of Termination; provided that with respect to
the Management Investors who are denoted on Schedule A hereto as having
employment contracts, upon Termination (i) for Cause or upon the resignation
of the Terminated Holder without Good Reason, the Terminated Shares shall be
subject to a purchase option exercisable immediately by Holdings at the lower
of Cost or Fair Market Value as of the date of Termination and (ii) without
cause (but at the employer's initiative), the Terminated Shares shall be
subject to a purchase option exercisable immediately by Holdings at the
higher of Cost or Fair Market Value, as of the date of Termination. All such
options shall be exercisable for all but not less than all the Terminated
Shares."
SECTION 5. Amendment to Section 4.3. References to "the 120-day period" in
Section 4.3(a) and Section 4.3(b) of the Agreement shall each be replaced with
"(i) in the case of the initial public offering of Registrable Securities after
the date hereof, the 180-day period, and (ii) in all other cases, the 120-day
period".
SECTION 6. Waiver. The Holders hereby waive their rights under Section 4.2
of the Agreement with respect to the initial public offering of Shares by the
Company and FIMA (the "Offering") pursuant to a registration statement filed
with the Commission on March 8, 1994 (the "Registration Statement") including,
without limitation, the notice provisions thereof.
SECTION 7. Consent. For the purposes of Section 3.3 of the Agreement, FIMA
agrees that it has approved the Offering, subject only to the right of
5
5
Mr. Botta to approve, as a member of the Pricing Committee appointed by the
Board of Directors of the Company, any sale price below $15 per share.
SECTION 8. Notice. The Company expects the Registration Statement relating
to the Offering to become effective at any time after the date hereof and prior
to June 1, 1994. The preceding sentence shall satisfy in full the notice
requirements of Section 4.3(a) of the Agreement.
SECTION 9. Effectiveness; Miscellaneous. (a) This Amendment shall become
effective as of the date first set forth above.
(b) This Amendment constitutes the entire agreement and understanding of
the parties with respect to the subject matter hereof and supersedes any and
all prior agreements and understandings, oral or written, relating to the
subject matter hereof.
(c) Section headings used herein are for convenience of reference only and
are not to affect the construction of, or to be taken into consideration in
interpreting, this Amendment.
(d) The laws of the State of Delaware shall govern the interpretation,
validity and performance of the terms of this Amendment, regardless of the law
that might be applied under applicable principles of conflicts of laws.
(e) Each reference to a party hereto shall be deemed to include its
successors and assigns, all of whom shall be bound by this Amendment and to
whose benefit the provisions of this Amendment shall inure.
(f) This Amendment may be executed in any number of counterparts, each of
which shall be an original but all of which, when taken together, shall
constitute but one instrument.
(g) Except as specifically amended or modified hereby, the Agreement shall
continue in full force and effect in accordance with the provisions thereof.
As used therein, the terms "Agreement", "herein", "hereunder", "hereinafter",
"hereto", "hereof" and words of similar
6
6
import shall, unless the context otherwise requires, refer to the Agreement as
amended hereby.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date first set forth above.
Lear Seating Corporation
by
-------------------------------
Name:
Title:
As Holders of a majority of the Shares
held by the Lehman Partnerships and
their respective Permitted Transferees:
Lehman Brothers Merchant Banking
Portfolio Partnership L.P.
by
-------------------------------
Name:
Title:
Lehman Brothers Capital Partners II, L.P.
by
-------------------------------
Name:
Title:
Lehman Brothers Offshore Investment
Partnership L.P.
by
-------------------------------
Name:
Title:
7
7
Lehman Brothers Offshore Investment
Partnership-Japan L.P.
by
-------------------------------
Name:
Title:
Lehman Brothers Merchant Banking
Partners, Inc.
by
-------------------------------
Name:
Title:
As Holders of a majority of the Shares
held by FIMA and its Permitted Transferees:
FIMA Finance Management Inc.
by
-------------------------------
Name:
Title:
As Holders of a majority of the Shares
held by Management Investors and their
respective Permitted Transferees:
-----------------------------------
John Boerger
-----------------------------------
James Comer
-----------------------------------
R. C. Donovan
-----------------------------------
W. E. Douglas
-----------------------------------
G. H. Dunze
8
8
-----------------------------------
M. R. Edwards
-----------------------------------
C. E. Fisher
-----------------------------------
A. J. Goscinski
-----------------------------------
J. A. Hollars
-----------------------------------
L. R. Haskell
-----------------------------------
L. K. Hensley
-----------------------------------
T. B. Henstock
-----------------------------------
R. G. Hodgson
-----------------------------------
R. B. Hopkins, Jr.
-----------------------------------
J. G. Harris
-----------------------------------
W. G. Jamieson
-----------------------------------
E. Koslowski
9
9
-----------------------------------
T. E. Melson
-----------------------------------
R. T. Murphy
-----------------------------------
J. D. Nevins
-----------------------------------
R. E. Rossiter
-----------------------------------
R. J. Rault
-----------------------------------
D. J. Simpkins
-----------------------------------
R. B. Smith, Jr.
-----------------------------------
R. G. Tancredi
-----------------------------------
J. E. Thompson
-----------------------------------
M. Tepfenhart
-----------------------------------
J. H. Vandenberghe
-----------------------------------
A. H. Vartanian
10
10
-----------------------------------
J. Wainwright
-----------------------------------
K. L. Way