Looking for an agreement? Search from over 1 million agreements now.

Affinia Management Stockholders Agreement

This is an actual contract by Affinia Group Intermediate Holdings.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
EXHIBIT 10.18 MANAGEMENT STOCKHOLDER'S AGREEMENT (PURCHASED STOCK AND OPTIONS) This Management Stockholder's Agreement (this "Agreement") isentered into as of ____ __, 2005 (the "Effective Date") between Affinia GroupHoldings Inc., a Delaware corporation (the "Company"), and the undersignedperson (the "Management Stockholder") (the Company and the ManagementStockholder being hereinafter collectively referred to as the "Parties"). Allcapitalized terms not immediately defined are hereinafter defined in Section7(b) of this Agreement or in the Option Plan (as such term is defined below) or,if not defined therein, in the Stock Option Agreement (as such term is definedbelow). WHEREAS, pursuant to the Stock and Asset Purchase Agreement,dated as of July 8, 2004 (as amended, modified or supplemented from time totime, the "Purchase Agreement") between Affinia Group, Inc. (f/k/a AAG OpcoCorp.), a Delaware corporation ("Affinia") and a wholly owned subsidiary of theCompany, and Dana Corporation, a Virginia corporation ("Dana"), Affiniapurchased the automotive aftermarket business from Dana (the date of suchpurchase, the "Closing Date"); WHEREAS, in connection with the transactions contemplated bythe Purchase Agreement, Cypress Merchant Banking Partners II L.P., a Delawarelimited partnership, Cypress Merchant Banking II C.V., a limited partnershipformed under the laws of The Netherlands, 55th Street Partners II L.P., aDelaware limited partnership, Cypress Side-By-Side L.L.C., a Delaware limitedliability company and other investors have entered into a StockholdersAgreement, dated as of the Closing Date (the "Investor Stockholders Agreement"); WHEREAS, the Management Stockholder has been selected by theCompany to purchase shares of Common Stock and/or to receive options to purchaseshares of Common Stock (together with any options to purchase shares of CommonStock granted to the Management Stockholder after the Effective Time, the"Options") pursuant to the terms set forth below and the terms of the 2005 StockIncentive Plan of the Company (the "Option Plan") and the Nonqualified StockOption Agreement dated as of the date hereof, entered into by and between theCompany and the Management Stockholder (the "Stock Option Agreement"); and WHEREAS, this Agreement is one of several other agreements("Other Management Stockholders' Agreements") which have been or in the futurewill be entered into between the Company and other individuals who are or willbe key employees of the Company or one of its subsidiaries (collectively, the"Other Management Stockholders"). NOW THEREFORE, to implement the foregoing and in considerationof the grant of Options and of the mutual agreements contained herein, theParties agree as follows: 1. Issuance of Purchased Stock; Options (a) Subject to the terms and conditions hereinafter set forth,the Management Stockholder hereby subscribes for and shall purchase, as of theEffective Date, and the Company shall issue and deliver to the ManagementStockholder as of the Effective Date, [________] shares of Common Stock, at aper share purchase price of $[100.00] (the "Base Price"), which price isequivalent to the effective per share purchase price paid by Cypress for the shares of the Company (all such shares acquired by theManagement Stockholder, the "Purchased Stock"). The aggregate purchase price forall shares of the Purchased Stock is $[________]. (b) Subject to the terms and conditions hereinafter set forthand as set forth in the Option Plan, as of the Effective Date the Company isissuing to the Management Stockholder Options to acquire shares of Common Stock,at an initial exercise price per share equal to the Base Price, and the Partiesshall execute and deliver to each other copies of the Stock Option Agreementconcurrently with the issuance of the Options. (c) The Company shall have no obligation to issue or sell anyPurchased Stock or issue any Options to any person who (i) is a resident orcitizen of a state or other jurisdiction in which the sale of the Common Stockto him would constitute a violation of the securities or "blue sky" laws of suchjurisdiction or (ii) is not an employee of the Company or any of itssubsidiaries on the date hereof. 2. Management Stockholder's Representations, Warranties andAgreements. (a) The Management Stockholder agrees and acknowledges that hewill not, directly or indirectly, offer, transfer, sell, assign, pledge,hypothecate or otherwise dispose of (any of the foregoing acts being referred toherein as a "transfer") any shares of Purchased Stock or Common Stock issuableupon exercise of the Options ("Option Stock"; together with all Purchased Stock,Net Settled Stock and any other Common Stock otherwise acquired and/or held bythe Management Stockholder Entities, "Stock"), except as otherwise provided forherein. If the Management Stockholder is a Rule 405 Affiliate, the ManagementStockholder also agrees and acknowledges that he will not transfer any shares ofthe Stock unless: (i) the transfer is pursuant to an effective registration statement under the Securities Act of 1933, as amended, and the rules and regulations in effect thereunder (the "Act"), and in compliance with applicable provisions of state securities laws; or (ii) (A) counsel for the Management Stockholder (which counsel shall be reasonably acceptable to the Company) shall have furnished the Company with an opinion, reasonably satisfactory in form and substance to the Company, that no such registration is required because of the availability of an exemption from registration under the Act and (B) if the Management Stockholder is a citizen or resident of any country other than the United States, or the Management Stockholder desires to effect any transfer in any such country, counsel for the Management Stockholder (which counsel shall be reasonably satisfactory to the Company) shall have furnished the Company with an opinion or other advice reasonably satisfactory in form and substance to the Company to the effect that such transfer will comply with the securities laws of such jurisdiction.Notwithstanding the foregoing, the Company acknowledges and agrees that any ofthe following transfers are deemed to be in compliance with the Act and thisAgreement (including without limitation any restrictions or prohibitions herein)and no opinion of counsel is required in connection therewith: (x) a transfermade pursuant to Section 3, 4, 5, 6 or 9 hereof, (y) a transfer upon the deathor Disability of the Management Stockholder to the Management Stockholder'sEstate or a transfer to the executors, administrators, testamentary 2 trustees, legatees or beneficiaries of a person who has become a holder of Stockin accordance with the terms of this Agreement; provided that it is expresslyunderstood that any such transferee shall be bound by the provisions of thisAgreement, and (z) a transfer made after the Effective Date in compliance withthe federal securities laws to a Management Stockholder's Trust, provided thatsuch transfer is made expressly subject to this Agreement and that thetransferee agrees in writing to be bound by the terms and conditions hereof. (b) From and after the Effective Date until such time as theapplicable transfer restrictions no longer apply to such Stock and the Companyhas reissued a certificate representing such Stock, the certificate (orcertificates) representing the Stock shall bear the following legend: "THE SHARES 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 MANAGEMENT STOCKHOLDER'S AGREEMENT DATED AS OF ____ __, 2005 BETWEEN AFFINIA GROUP HOLDINGS INC. (THE "COMPANY") AND THE MANAGEMENT STOCKHOLDER NAMED ON THE FACE HEREOF (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY). THE SHARES REPRESENTED BY THIS CERTIFICATE ARE NOT REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND NO SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND IN COMPLIANCE WITH ALL APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS OR (B) IF THE COMPANY HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL WHICH SHALL BE REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS NOT IN VIOLATION OF THE ACT OR APPLICABLE STATE SECURITIES LAWS." (c) The Management Stockholder acknowledges that he has beenadvised that (i) a restrictive legend in the form heretofore set forth shall beplaced on the certificates representing the Stock and (ii) a notation shall bemade in the appropriate records of the Company indicating that the Stock issubject to restrictions on transfer and appropriate stop transfer restrictionswill be issued to the Company's transfer agent with respect to the Stock. If theManagement Stockholder is a Rule 405 Affiliate, the Management Stockholder alsoacknowledges that (1) the Stock must be held indefinitely and the ManagementStockholder must continue to bear the economic risk of the investment in theStock unless it is subsequently registered under the Act or an exemption fromsuch registration is available, (2) when and if shares of the Stock may bedisposed of without registration in reliance on Rule 144 of the rules andregulations promulgated under the Act, such disposition can be made only inlimited amounts in accordance with the terms and conditions of such Rule and 3 (3) if the Rule 144 exemption is not available, public sale without registrationwill require compliance with some other exemption under the Act. (d) If any shares of the Stock are to be disposed of inaccordance with Rule 144 under the Act or otherwise, the Management Stockholdershall promptly notify the Company of such intended disposition and shall deliverto the Company at or prior to the time of such disposition such documentation asthe Company may reasonably request in connection with such sale and, in the caseof a disposition pursuant to Rule 144, shall deliver to the Company an executedcopy of any notice on Form 144 required to be filed with the SEC. (e) The Management Stockholder agrees that, if any shares ofthe Stock are offered to the public pursuant to an effective registrationstatement under the Act (other than registration of securities issued on FormS-8, S-4 or any successor or similar form), the Management Stockholder will noteffect any public sale or distribution of any shares of the Stock not covered bysuch registration statement from the time of the receipt of a notice from theCompany that the Company has filed or imminently intends to file suchregistration statement to, or within 180 days (or such shorter period as may beconsented to by the managing underwriter or underwriters) in the case of theinitial Public Offering and ninety (90) days (or in an underwritten offeringsuch shorter period as may be consented to by the managing underwriter orunderwriters, if any) in the case of any other Public Offering after, theeffective date of such registration statement, unless otherwise agreed to inwriting by the Company. (f) The Management Stockholder represents and warrants that(i) with respect to the Stock, he has received and reviewed the availableinformation relating to the Stock, including having received and reviewed thedocuments related thereto, certain of which documents set forth the rights,preferences and restrictions relating to the Options and the Stock underlyingthe Options and (ii) he has been given the opportunity to obtain any additionalinformation or documents and to ask questions and receive answers about suchinformation, the Company and the business and prospects of the Company which hedeems necessary to evaluate the merits and risks related to his investment inthe Stock and to verify the information contained in the information received asindicated in this Section 2(f), and he has relied solely on such information. (g) The Management Stockholder further represents and warrantsthat (i) his financial condition is such that he can afford to bear the economicrisk of holding the Stock for an indefinite period of time and has adequatemeans for providing for his current needs and personal contingencies, (ii) hecan afford to suffer a complete loss of his investment in the Stock, (iii) heunderstands and has taken cognizance of all risk factors related to the purchaseof the Stock, (iv) his knowledge and experience in financial and businessmatters are such that he is capable of evaluating the merits and risks of hispurchase of the Stock as contemplated by this Agreement, (v) his participationin the purchase of the Purchased Stock is voluntary and (vi) he is a resident ofthe State of [_________________]. 3. Transferability of Stock. The Management Stockholder agreesthat he will not transfer any shares of the Stock at any time during the periodcommencing on the Effective Date and ending on the earliest to occur (the dateof such event, the "Lapse Date") of (i) the seventh anniversary of the ClosingDate, (ii) the date of consummation of a Qualified Public Offering and (iii) aChange in Control; provided, however, that the Management Stockholder maytransfer shares of Stock during such time pursuant to one of 4 the following exceptions: (a) transfers permitted by Section 5 or 6; (b)transfers permitted by clauses (y) and (z) of Section 2(a); (c) a sale of sharesof Common Stock pursuant to an effective registration statement under the Actfiled by the Company, including without limitation a sale pursuant to Section 9(excluding any registration on Form S-8, S-4 or any successor or similar form);(d) transfers permitted pursuant to the Sale Participation Agreement (as definedin Section 7); (e) transfers to Cypress and its Affiliates or (f) othertransfers permitted by the Board in its sole discretion. No transfer of any suchshares in violation hereof shall be made or recorded on the books of the Companyand any such transfer shall be void ab initio and of no effect. 4. Right of First Refusal. (a) If, at any time after the LapseDate and prior to the date of consummation of a Qualified Public Offering, theManagement Stockholder receives a bona fide offer to purchase any or all of hisStock (the "Third Party Offer") from a third party (which, for the avoidance ofdoubt, shall not include any transfers pursuant to clauses (y) and (z) ofSection 2(a) or pursuant to the Sale Participation Agreement) (the "Offeror"),which the Management Stockholder wishes to accept, the Management Stockholdershall cause the Third Party Offer to be reduced to writing and shall notify theCompany in writing of his wish to accept the Third Party Offer. The ManagementStockholder's notice to the Company shall contain an irrevocable offer to sellsuch Stock to the Company (in the manner set forth below) at a purchase priceequal to the price contained in, and on the same terms and conditions of, theThird Party Offer, and shall be accompanied by a copy of the Third Party Offer(which shall identify the Offeror). At any time within fifteen (15) days afterthe date of the receipt by the Company of the Management Stockholder's notice,the Company shall have the right and option to purchase, or to arrange for athird party to purchase, all (but not less than all) of the shares of Stockcovered by the Third Party Offer, pursuant to Section 4(b). (b) The Company shall have the right and option to purchase,or to arrange for a third party to purchase, all of the shares of Stock coveredby the Third Party Offer at the same price and on substantially the same termsand conditions as the Third Party Offer (or, if the Third Party Offer includesany consideration other than cash, then at the sole option of the Company, atthe equivalent all cash price, determined in good faith by the Company's Board),by delivering a certified bank check or checks in the appropriate amount (or bywire transfer of immediately available funds, if the Management StockholderEntities provide to the Company wire transfer instructions) (and any suchnon-cash consideration to be paid) to the Management Stockholder at theprincipal office of the Company against delivery of certificates or otherinstruments representing the shares of Stock so purchased, appropriatelyendorsed by the Management Stockholder. If at the end of the 15-day period, theCompany has not tendered the purchase price for such shares in the manner setforth above, the Management Stockholder may, during the succeeding 60-dayperiod, sell not less than all of the shares of Stock covered by the Third PartyOffer, to the Offeror on terms no less favorable to the Management Stockholderthan those contained in the Third Party Offer. Promptly after such sale, theManagement Stockholder shall notify the Company of the consummation thereof andshall furnish such evidence of the completion and time of completion of suchsale and of the terms thereof as may reasonably be requested by the Company. If,at the end of sixty (60) days following the expiration of the 15-day periodduring which the Company is entitled hereunder to purchase the Stock, theManagement Stockholder has not completed the sale of such shares of the Stock asaforesaid, all of the restrictions on sale, transfer or assignment contained inthis Agreement shall again be in effect with respect to such shares of theStock. 5 5. The Management Stockholder's Right to Resell Stock and Options to the Company. (a) Except as otherwise provided herein and for the purpose ofproviding a market for the Stock or Options for the applicable ManagementStockholder Entities, if, prior to the Lapse Date, either (x) prior toRetirement, the Management Stockholder's employment with the Company (or any ofits subsidiaries) terminates as a result of the death or Disability of theManagement Stockholder or (y) after Retirement, the Management Stockholder diesor suffers a Disability, then the applicable Management Stockholder Entity,shall, for one year following the date of (x) such termination for death orDisability or (y) such death or Disability, respectively (as applicable, the"Put Period"), have the right to: (i) With respect to the Stock, sell to the Company, and the Company shall be required to purchase, on one occasion, all of the shares of Stock then held by the applicable Management Stockholder Entities at a per share price equal to Fair Market Value (the "Section 5 Repurchase Price") at the time of the purchase; (ii) With respect to any outstanding Options, receive from the Company, on one occasion, in exchange for all of the exercisable portions of the Options then held by the applicable Management Stockholder Entities, an amount equal to the product of (x) the excess, if any, of the Section 5 Repurchase Price at the time of the exchange over the Option Exercise Price and (y) the number of Exercisable Option Shares, which Options shall be terminated in exchange for such payment, which shall be payable in shares of Stock (the "Net Settled Stock"). In the event the foregoing Option Excess Price is zero or a negative number, all outstanding exercisable portions of the Options granted to the Management Stockholder under the Option Plan shall be automatically terminated without any payment in respect thereof. In the event that the Management Stockholder Entities do not exercise the foregoing rights, the exercisable but unexercised portions of the Options shall terminate in accordance with the terms of Section 4(a) of the Stock Option Agreement. Subject to the Stock Option Agreement, the unexercisable portions of the Options held by the applicable Management Stockholder Entities shall terminate without payment immediately upon termination of employment in accordance with Section 3(c) of the Stock Option Agreement. (iii) For 30 days following the six month anniversary (the "Settled Stock Put Period") of the receipt by the applicable Management Stockholder Entities of the Net Settled Stock, sell to the Company, and the Company shall be required to purchase, on one occasion, all such Net Settled Stock held by the applicable Management Stockholder Entities at a per share price equal to the Section 5 Repurchase Price at the time of the purchase. (b) In the event the applicable Management StockholderEntities intend to exercise their rights pursuant to Section 5(a), suchManagement Stockholder Entities shall send written notice to the Company, (i) atany time during the Put Period, of their intention to sell shares of Stock inexchange for the payment referred to in Section 5(a)(i) and/or to exchange suchOptions for Net Settled Stock or (ii) at any time during the Settled Stock PutPeriod, of their intention to sell the Net Settled Stock in exchange for thepayment referred to in Section 5(a)(iii)(the "Redemption Notice"). Thecompletion of the purchases or exchanges shall take place at the principaloffice of the Company on the tenth business day after the giving of theRedemption Notice. The applicable Section 5 Repurchase Price shall be paid by 6 delivery to the applicable Management Stockholder Entities of a certified bankcheck or checks in the appropriate amount payable to the order of each of theapplicable Management Stockholder Entities (or by wire transfer of immediatelyavailable funds, if the Management Stockholder Entities provide to the Companywire transfer instructions) and the Net Settled Stock shall be delivered to theapplicable Management Stockholder Entities, both against delivery ofcertificates or other instruments representing the Stock so purchased andappropriate documents canceling the Options so terminated appr
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |