-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FipRUe51PziSexMQWMyzZ1hCroK4/zP+tUXai41oX8QMx7maCttPJzse9/Fo9EEK STpp5ns/KoEDY0SgNH47Dg== 0000950124-08-002733.txt : 20080616 0000950124-08-002733.hdr.sgml : 20080616 20080616163245 ACCESSION NUMBER: 0000950124-08-002733 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20080616 DATE AS OF CHANGE: 20080616 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TECUMSEH PRODUCTS CO CENTRAL INDEX KEY: 0000096831 STANDARD INDUSTRIAL CLASSIFICATION: AIR COND & WARM AIR HEATING EQUIP & COMM & INDL REFRIG EQUIP [3585] IRS NUMBER: 381093240 STATE OF INCORPORATION: MI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-30158 FILM NUMBER: 08900860 BUSINESS ADDRESS: STREET 1: 100 E PATTERSON ST CITY: TECUMSEH STATE: MI ZIP: 49286 BUSINESS PHONE: 5174238411 MAIL ADDRESS: STREET 1: 100 EAST PATTERSON STREET CITY: TECUMSEH STATE: MI ZIP: 49286 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HERRICK TODD W CENTRAL INDEX KEY: 0000920678 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 150 W JEFFERSON STREET 2: SUITE 2500 CITY: DETROIT STATE: MI ZIP: 48226 BUSINESS PHONE: 3134967570 MAIL ADDRESS: STREET 1: 100 EAST PATTERSON STREET CITY: TECUMSEH STATE: MI ZIP: 49286 SC 13D/A 1 k27454sc13dza.txt AMENDMENT TO SCHEDULE 13D -------------------------- OMB APPROVAL -------------------------- OMB Number: 3235-0145 Expires: February 28, 2009 Estimated average burden hours per response....14.5 -------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 5)* Tecumseh Products Company (Name of Issuer) Class B Common Stock, par value $1.00 per share (Title of Class of Securities) 878895 10 1 (CUSIP Number) Todd W. Herrick 3970 Peninsula Drive Petoskey, Michigan 49770-8006 (231) 348-8238 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) June 13, 2008 (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this Schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). POTENTIAL PERSONS WHO ARE TO RESPOND TO THE COLLECTION OF INFORMATION CONTAINED IN THIS FORM ARE NOT REQUIRED TO RESPOND UNLESS THE FORM DISPLAYS A CURRENTLY VALID OMB CONTROL NUMBER. Page 1 of 19 pages CUSIP No. 878895 10 1 - -------------------------------------------------------------------------------- 1. Names of Reporting Persons Todd W. Herrick - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) Not Applicable - ------------------------------------------..------------------------------------ 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization United States of America - -------------------------------------------------------------------------------- 7. Sole Voting Power 21,906 ---------------------------------------------------------------- Number of 8. Shared Voting Power Shares Beneficially 2,157,539 Owned by Each ---------------------------------------------------------------- Reporting 9. Sole Dispositive Power Person With: 21,906 ---------------------------------------------------------------- 10. Shared Dispositive Power 2,157,539 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 2,179,445 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 42.9% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) IN - -------------------------------------------------------------------------------- Page 2 of 19 pages CUSIP No. 878895 10 1 ITEM 1. SECURITY AND ISSUER. The title of the class of equity securities to which this statement relates is Class B Common Stock, par value $1.00 per share ("Class B Stock"), of Tecumseh Products Company, a Michigan corporation ("Tecumseh"). The address of Tecumseh's principal executive offices is 100 East Patterson Street, Tecumseh, Michigan 49286. ITEM 2. IDENTITY AND BACKGROUND. This statement is being filed by Todd W. Herrick. Todd W. Herrick's address is 3970 Peninsula Drive, Petoskey, Michigan 49770-8006. Todd W. Herrick is retired and this is his present principal occupation or employment. Tecumseh's principal business address is 100 East Patterson Street, Tecumseh, Michigan 49286. Todd W. Herrick has not, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). Todd W. Herrick has not, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Todd W. Herrick is a citizen of the United States of America. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Not applicable. ITEM 4. PURPOSE OF TRANSACTION. Todd W. Herrick's purpose in serving as one of the trustees of Herrick Foundation is to take part in the management of its charitable activities. Todd W. Herrick's purpose in serving as a trustee of the Ray W. Herrick and Hazel M. Herrick Trusts u/a/d February 26, 1949 and February 24, 1956 f/b/o Kenneth Herrick and his descendants (the "Trusts") is to take part in the management of the activities of the Trusts of which Todd W. Herrick or Toni L. Herrick is the beneficiary. In his capacity as a member of the Board of Trustees of Herrick Foundation, as a trustee of the Trusts and/or in his personal capacity, Todd W. Herrick, expects from time to time to be presented with, give consideration to, and/or act upon, proposals similar to those enumerated below and/or proposals that one or more of Tecumseh, Herrick Foundation, the Trusts, Todd W. Herrick and/or Toni L. Herrick acquire, dispose of, or vote shares of Class B Stock or other securities of Tecumseh, including, without limitation, by public or private sale (registered or unregistered and with or without the simultaneous sale of newly-issued shares of Class B Stock by Tecumseh), gift, pledge or otherwise, including, without limitation, sales of Class B Stock pursuant to Rule 144 under the Securities Act of 1933, as amended, or otherwise. Todd W. Page 3 of 19 pages CUSIP No. 878895 10 1 Herrick, as a member of the Board of Trustees of Herrick Foundation, as a trustee of the Trusts, and/or in his personal capacity, reserves the right not to acquire Class B Stock or not to dispose of all or part of such Class B Stock if he determines such acquisition or disposal is not in Tecumseh's, Herrick Foundation's, the Trusts' or his personal best interests at that time. On March 6, 2007, Todd W. Herrick and the Herrick Foundation filed a lawsuit against Albert A. Koch, Peter M. Banks, David M. Risley (collectively, the "Director Defendants") and Tecumseh in the Lenawee County Circuit Court, Case No. 07-2525-CZ (the "Herrick Lawsuit"). On March 20, 2007, Tecumseh filed a lawsuit against Todd W. Herrick, Kent B. Herrick, Toni Herrick, Michael Indenbaum and Herrick Foundation in the United States District Court for the Eastern District of Michigan, Southern Division, Case No. 07-2525-CZ (the "Tecumseh Lawsuit"). On April 2, 2007, Tecumseh entered into a Settlement and Release Agreement, a copy of which is attached as Exhibit 99.2 to Amendment No. 3 to this Schedule and incorporated into this Schedule by reference (the "Settlement Agreement"), with Todd W. Herrick, Kent B. Herrick, Toni L. Herrick, Herrick Foundation, and Michael A. Indenbaum (collectively, the "Herrick Entities") and the Director Defendants settling corporate governance disputes that had been the subject of the Herrick Lawsuit and the Tecumseh Lawsuit. Pursuant to the Settlement Agreement, among other things: - Board of directors - Todd W. Herrick resigned from Tecumseh's board and became "Chairman Emeritus," with the right to attend board meetings and to receive materials distributed to the board, but with no vote. Todd W. Herrick resigned as "Chairman Emeritus" and as a consultant effective March 10, 2008. - The board appointed Kent B. Herrick to fill the vacancy created by Todd Herrick's resignation. The board was required to continue to nominate Kent B. Herrick for re-election to the board during the term of the Settlement Agreement, which continued until the conclusion of Tecumseh's 2008 annual meeting of shareholders on April 30, 2008. - Effective July 31, 2007, Mr. Koch resigned from the board. Effective August 13, 2007, (1) Edwin L. Buker, William E. Aziz, Steven J. Lebowski and Jeffry N. Quinn were appointed as new directors of Tecumseh, (2) Edwin L. Buker was appointed President and Chief Executive Officer of Tecumseh, and (3) James J. Bonsall ceased to be Tecumseh's interim President and Chief Operating Officer, - Management - Todd W. Herrick served as a consultant to Tecumseh in a capacity to be determined by the new Chief Executive Officer. He did not receive any compensation but was entitled to reimbursement for reasonable and documented expenses. - Kent B. Herrick was entitled to a lump sum severance payment equal to one year's salary at the rate in effect when he was terminated from his position with Tecumseh on January 19, 2007. - Other matters Page 4 of 19 pages CUSIP No. 878895 10 1 - The parties dismissed their lawsuits with prejudice. Tecumseh and the Director Defendants agreed not to challenge the right of Todd W. Herrick and the other Herrick Entities to vote their shares and agreed that they have the right to vote all of their shares. - Tecumseh agreed to reimburse Todd W. Herrick and the other Herrick Entities for their reasonable and documented expenses in connection with the Herrick Lawsuit and the Tecumseh Lawsuit, the Settlement Agreement, and other specified matters, up to a maximum of $300,000. - Todd W. Herrick and the other Herrick Entities agreed to exercise their voting rights in a manner consistent with the terms of the Settlement Agreement. - Various parties released each other from claims in connection with the matters referenced in the Settlement Agreement. The Settlement Agreement has additional terms and conditions, and the full Settlement Agreement, attached as Exhibit 99.2 to Amendment No. 3 to this Schedule, should be reviewed in its entirety. On March 10, 2008, Herrick Foundation, through Todd W. Herrick, its President, sent a letter to Tecumseh's Board of Directors, a copy of which was attached as Exhibit 99.3 to Amendment No. 4 to this Schedule. The letter stated that Herrick Foundation, in the exercise of its fiduciary duties, engaged Beringea LLC to review and evaluate Herrick Foundation's shareholdings in Tecumseh. Beringea recommended that Herrick Foundation liquidate its position in Tecumseh stock in the short term and Herrick Foundation's Board of Directors determined that it should pursue a sale. Herrick Foundation also stated that it believes it is possible that Herrick family members and the Trusts would also be interested in liquidating their positions. After discussions with representatives of Tecumseh and considering its alternatives, because Herrick Foundation believes it would be in the best interests of all shareholders to sell Tecumseh in the short term, Herrick Foundation requested that Tecumseh form a committee of Tecumseh's Board of Directors to explore the possible sale of Tecumseh to strategic and/or financial buyers. Simultaneously with these actions, Herrick Foundation began approaching potential buyers regarding their interest in purchasing Herrick Foundation's shares in Tecumseh or in purchasing Tecumseh. Therefore, Herrick Foundation also requested Tecumseh's Board of Directors take all necessary action to redeem or terminate Tecumseh's poison pills, eliminate the Class A Protective Provision contained in Tecumseh's Articles of Incorporation (including the proposal in this year's proxy statement) and take all other necessary steps to avoid the application of the anti-takeover provisions under applicable law that may have an adverse effect on Herrick Foundation's ability to sell its shares to a third party or on a potential purchaser's ability to purchase Tecumseh. The letter has additional terms and conditions, and the full letter, attached as Exhibit 99.3 to Amendment No. 4 to this Schedule, should be reviewed in its entirety. On March 30, 2008, Tecumseh responded that its Governance and Nominating Committee, on behalf of the Board, had determined that the proposal to eliminate the Class A Protective Provision was not in the best interests of Tecumseh and all of its shareholders. On April 4, 2008, a majority of Tecumseh's Board amended Tecumseh's bylaws to raise the percentage of voting shares needed to call a special meeting of shareholders from 50% to Page 5 of 19 pages CUSIP No. 878895 10 1 75% (the "Bylaw Amendment"). On April 16, 2008, Herrick Foundation sent a letter to Tecumseh's Board urging the Board to reverse the Bylaw Amendment or submit it to a vote of shareholders. On April 24, 2008, Tecumseh responded that its Governance and Nominating Committee had determined not to recommend that the Board redeem or terminate Tecumseh's Class A and Class B Rights Agreements or take action to avoid application of certain anti-takeover provisions under applicable law at this time. The letter also indicated that the Board had authorized the Governance Committee to consider potential alternatives that would facilitate the Herrick Foundation's desire to sell its Class A and Class B shares in a manner that is in the best interests of Tecumseh and all of its shareholders. The letter did not agree to reverse the Bylaw Amendment. On June 13, 2008, pursuant to Plaintiff Herrick Foundation's Verified Complaint for Declaratory, Injunctive and Other Relief, a copy of which is attached to this Schedule as Exhibit 99.1 and is incorporated in this Schedule by reference, Herrick Foundation filed a lawsuit against Tecumseh in the Lenawee County Circuit Court (the "Special Meeting Lawsuit"). The Special Meeting Lawsuit asks the court, among other things, to invalidate the Bylaw Amendment and to require Tecumseh to notice and hold a special meeting of the shareholders of Tecumseh, at which Herrick Foundation will seek to remove and replace two of Tecumseh's directors (Peter M. Banks and David M. Risley). Other than as described above and other than as described in Tecumseh's SEC filings, Todd W. Herrick has no current plans or proposals which relate to, or would result in, (a) the acquisition by any person of additional securities of Tecumseh, or the disposition of securities of Tecumseh, (b) any extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving Tecumseh or any of its subsidiaries, other than those described by Tecumseh in its SEC filings or in the March 10, 2008 letter described above, (c) any sale or transfer of a material amount of assets of Tecumseh or any of its subsidiaries, other than those described by Tecumseh in its SEC filings or in the March 10, 2008 letter described above, (d) any change in the present board of directors or management of Tecumseh, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board, except that, from time to time, Tecumseh might add additional directors to fill existing vacancies if it finds qualified candidates willing to serve and from time to time, directors might resign and except as described in the Special Meeting Lawsuit, (e) any material change in Tecumseh's present capitalization or dividend policy, (f) any other material change in Tecumseh's business or corporate structure, (g) any changes in Tecumseh's Articles of Incorporation or Bylaws or other actions which may impede the acquisition of control of Tecumseh by any person except as described in the Special Meeting Lawsuit, (h) causing a class of securities of Tecumseh to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association, (i) a class of Tecumseh's equity securities becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended, or (j) any action similar to those enumerated above. The foregoing notwithstanding, Todd W. Herrick intends to remain free to take such actions, including the making of such proposals, as he may from time to time deem appropriate in light of the circumstances which might arise from time to time. Page 6 of 19 pages CUSIP No. 878895 10 1 ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. The number and percentage of shares of Class B Stock beneficially owned by Todd W. Herrick as of June 13, 2008 are as follows:
Number Percent ------------- --------- Todd W. Herrick 2,179,445 (1) 42.9% (2)
(1) The shares shown above as beneficially owned by Todd W. Herrick consist of (1) 21,906 shares of Class B Stock owned by Todd W. Herrick, (2) 1,269,426 shares owned by Herrick Foundation, of which Todd W. Herrick is one of three members of the Board of Trustees, and (3) 888,113 shares of Class B Stock held by the Trusts of which Todd W. Herrick and Toni L. Herrick are the trustees who are descendants of Kenneth Herrick and, therefore, control the Trusts' Tecumseh stock. (2) Based on the 5,077,746 shares of Class B Stock reported as outstanding as of March 31, 2008 in Tecumseh's Quarterly Report on Form 10-Q for the quarter ended March 31, 2008. Todd W. Herrick is the sole beneficial owner of 21,906 shares of Class B Stock, or approximately 0.4% of the outstanding Class B Stock. Todd W. Herrick is also one of three members of the Board of Trustees of Herrick Foundation, the others being Kent B. Herrick and Michael A. Indenbaum. Herrick Foundation is a Michigan nonprofit corporation, which is a "Private Foundation" as defined in the Internal Revenue Code of 1986, as amended, organized for charitable purposes. Herrick Foundation owns 1,269,426 shares of Class B Common Stock, or approximately 25.0% of the outstanding shares of Class B Stock. Toni L. Herrick is Todd W. Herrick's sister, is an artist and this is her present principal occupation or employment. Toni L. Herrick's address is 7028 Foxmoor Court E, P.O. Box 19555, Kalamazoo, Michigan 49009. Toni L. Herrick is a citizen of the United States of America. Kent B. Herrick is Todd W. Herrick's son, has been a director of Tecumseh since April 10, 2007 and was the Executive Vice President of Global Business Development of Tecumseh until January 19, 2007 and this was his present principal occupation or employment. Kent B. Herrick's address is 9693 Woodbend, Saline, Michigan 48176, and Tecumseh's business address at 100 East Patterson Street, Tecumseh, Michigan 49286. Kent B. Herrick is a citizen of the United States of America. Michael A. Indenbaum is an attorney and this is his present principal occupation or employment. Michael A. Indenbaum's business address is 2290 First National Building, 660 Woodward Ave., Detroit, Michigan 48226-3506. He carries on his business as a partner of Honigman Miller Schwartz and Cohn LLP, a law firm organized as a Michigan limited liability partnership ("Honigman"). The principal business address of Honigman at which Michael A. Indenbaum carries on that business is 2290 First National Building, 660 Woodward Ave., Page 7 of 19 pages CUSIP No. 878895 10 1 Detroit, Michigan 48226-3506. Michael A. Indenbaum is a citizen of the United States of America. Todd W. Herrick and Toni L. Herrick share voting and investment power over the shares of Class B Common Stock held in the Trusts. Michael A. Indenbaum and National City Bank are also trustees of the Trusts, but they do not exercise any voting or investment power over the Tecumseh shares held in the Trusts. National City Bank is a national banking association with its principal offices located at National City Center, 1900 East Ninth Street, Cleveland, Ohio 44114-3484. The Trusts own 888,113 shares of Class B Common Stock, or approximately 17.5% of the outstanding Class B Stock. None of Toni L. Herrick, Kent B. Herrick, Michael A. Indenbaum or National City Bank has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). None of Toni L. Herrick, Kent B. Herrick, Michael A. Indenbaum or National City Bank has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Pursuant to Rule 13d-4 under the Securities Exchange Act of 1934, Todd W. Herrick expressly declares that the filing of this Schedule 13D shall not be construed as an admission that he is a beneficial owner of any of the shares of Tecumseh covered by this Schedule 13D, for purposes of Section 13(d) or 13(g) of the Securities Exchange Act of 1934, except the 21,906 shares of Class B Stock referred to above as beneficially owned by Todd W. Herrick, and Todd W. Herrick expressly disclaims all beneficial ownership of any kind or character in, to, or with respect to, all or any of the balance of the Class B Stock referred to in this Schedule 13D. Todd W. Herrick has the sole power to vote or direct the vote and sole power to dispose or to direct the disposition of 21,906 shares of the outstanding Class B Common Stock. Todd W. Herrick has shared power to vote or direct the vote and to dispose or to direct the disposition of 2,157,539 shares of Class B Stock. Todd W. Herrick expressly disclaims that he or any one or more of the above named persons constitute a "group" within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934. None of Todd W. Herrick, Toni L. Herrick, Herrick Foundation or the Trusts has engaged in any transactions in shares of Class B Stock in the past 60 days. Todd W. Herrick and Toni L. Herrick are filing this Schedule 13D solely to update this Schedule 13D. Herrick Foundation has the right to receive and the power to direct the receipt of dividends from, and the proceeds from the sale of, the 1,269,426 shares of Class B Stock owned by Herrick Foundation. Page 8 of 19 pages CUSIP No. 878895 10 1 The beneficiaries of the Trusts have the right to receive dividends on shares of Class B Stock held in those trusts and the right to receive the proceeds from any sale of those securities. The beneficiaries of the Trusts are Todd W. Herrick, his sister, Toni L. Herrick, and their descendants. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Other than those relationships with other members of the Board of Trustees of Herrick Foundation and the other trustees of the Trusts, Todd W. Herrick's oversight responsibilities for Herrick Foundation and Todd W. Herrick's and Toni L. Herrick's responsibilities for the Trusts, which are necessarily shared with the other trustees, options granted to Tricap Partners LLC, described in amendment no. 1 to this Schedule 13D, and the Settlement Agreement, described in Item 4 above and attached as Exhibit 99.2 to Amendment No. 3 to this Schedule, Todd W. Herrick does not have any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any Class B Stock or any other securities of Tecumseh, including, but not limited to, transfer or voting of any of the securities, finder's fees, joint ventures, loan or option agreements, puts or calls, guarantees of profits or loss, division or profits or loss, or the giving or withholding of proxies. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. 99.1 Plaintiff Herrick Foundation's Verified Complaint for Declaratory, Injunctive and Other Relief, dated June 13, 2008, in the case of Herrick Foundation v. Tecumseh Products Company, Case No. 08-3015-CZ, in the Michigan Circuit Court for the County of Lenawee. 99.2 Settlement and Release Agreement, dated as of April 1, 2007, among Tecumseh Products Company, Herrick Foundation, Todd W. Herrick, Toni Herrick, Kent B. Herrick, Michael Indenbaum, Albert A. Koch, Peter Banks and David M. Risley, incorporated by reference to Exhibit 99.2 to Amendment No. 3 to this Schedule 13D, dated April 2, 2007 and filed April 11, 2007. 99.3 Letter from Herrick Foundation to the Board of Directors of Tecumseh Products Company, dated March 10, 2008, incorporated by reference to Exhibit 99.3 to Amendment No. 4 to this Schedule 13D, dated March 10, 2008 and filed March 10, 2008. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: June 13, 2008 /s/ TODD W. HERRICK ---------------------------------------- Todd W. Herrick Page 9 of 19 pages CUSIP No. 878895 10 1 EXHIBIT INDEX Exhibit Number and Description 99.1 Plaintiff Herrick Foundation's Verified Complaint for Declaratory, Injunctive and Other Relief, dated June 13, 2008, in the case of Herrick Foundation v. Tecumseh Products Company, Case No. 08-3015-CZ, in the Michigan Circuit Court for the County of Lenawee. 99.2 Settlement and Release Agreement, dated as of April 1, 2007, among Tecumseh Products Company, Herrick Foundation, Todd W. Herrick, Toni Herrick, Kent B. Herrick, Michael Indenbaum, Albert A. Koch, Peter Banks and David M. Risley, incorporated by reference to Exhibit 99.2 to Amendment No. 3 to this Schedule 13D, dated April 2, 2007 and filed April 11, 2007. 99.3 Letter from Herrick Foundation to the Board of Directors of Tecumseh Products Company, dated March 10, 2008, incorporated by reference to Exhibit 99.3 to Amendment No. 4 to this Schedule 13D, dated March 10, 2008 and filed March 10, 2008. Page 10 of 19 pages EX-99.1 2 k27454exv99w1.txt PLAINTIFF HERRICK FOUNDATION'S VERIFIED COMPLAINT OF DECLARATORY Exhibit 99.1 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF LENAWEE HERRICK FOUNDATION, Plaintiff, Case No. 08-3015-CZ v. TECUMSEH PRODUCTS COMPANY, Hon. Timothy P. Pickard Defendant. HONIGMAN MILLER SCHWARTZ AND COHN LLP LUCAS LAW, PC By: Robert M. Jackson (P40723) By: Frederick Lucas (P29074) Jill L. Marr (P67725) Counsel for Plaintiff Counsel for Plaintiff 7577 US Highway 12 2290 First National Building Onsted, Michigan 49265 660 Woodward Avenue (517) 467-4000 Detroit, Michigan 48226 (313) 465-7430 VERIFIED COMPLAINT FOR DECLARATORY, INJUNCTIVE AND OTHER RELIEF A civil action between these and other parties pertaining to corporate governance issues regarding Tecumseh Products Company was previously filed in this Court, where it was given Case No. 07-2525-CZ and was assigned to Judge Timothy P. Pickard. That action is no longer pending. Plaintiff Herrick Foundation, by its counsel, states the following as its complaint for declaratory, injunctive and other relief against Tecumseh Products Company ("Tecumseh"): INTRODUCTION 1. Plaintiff seeks to invalidate an unreasonable bylaw amendment designed to block the right of shareholders to vote at a special meeting of shareholders. Page 11 of 19 pages 2. To entrench themselves at Tecumseh and put themselves beyond the reach of the shareholders, on April 4, 2008 a majority of Tecumseh's seven member Board of Directors raised the percentage of voting shares needed to call a special meeting of shareholders from 50% to an indefensively high 75%. The sole and improper purpose of that amendment was to prevent Plaintiff and possibly other shareholders from requiring a special meeting that could consider the removal of directors. 3. In order to preserve Plaintiff's rights as a shareholder, Plaintiff seeks declaratory and injunctive relief to: (a) invalidate the amendment to the bylaws, and (b) require Tecumseh to immediately notice and hold a special meeting of the shareholders of Tecumseh at which Plaintiff will seek to remove and replace two of Tecumseh's directors (Peter M. Banks and David M. Risley). 4. This Court may recall that, in the prior action that Plaintiff brought against Tecumseh (Case No. 07-2525-CZ), Plaintiff challenged, among other things, a retaliatory resolution adopted by the majority of Tecumseh's Board to pack the Board and thwart Plaintiff's rights as a shareholder. That attempt to pack the Board was abandoned as part of the settlement of that and another federal case in 2007. The current amendment to the bylaws is a similar improper action and requires immediate action and that a special meeting of the shareholders be called. 5. Pursuant to the parties' settlement, Plaintiff agreed to the present composition of the Board only through the 2008 annual shareholders meeting, which was held on April 30, 2008. The Board's actions are clearly an unreasonable effort to preclude Plaintiff from voting on any changes to the composition of the Board. THE PARTIES, JURISDICTION AND VENUE 6. Plaintiff Herrick Foundation is a Michigan nonprofit corporation that beneficially owns 1,269,426 voting shares, which is approximately 25% of the outstanding Class B common Page 12 of 19 pages stock (the only voting class) of Tecumseh. Tecumseh is a publicly-traded company listed on The NASDAQ Stock Market. Plaintiff is a Private Foundation under the Internal Revenue Code, organized for charitable purposes. The Board of Trustees of Plaintiff currently consists of Todd W. Herrick, Kent B. Herrick, and Michael Indenbaum. 7. Tecumseh is a Michigan corporation with its principal place of business at 100 East Patterson Street, Tecumseh, Lenawee County, Michigan. Members of the Herrick family have managed Tecumseh from its inception in 1934 until 2007. The total number of issued and outstanding Class B common shares of Tecumseh is 5,077,746. Tecumseh is a full line, independent global manufacturer of hermetic compressors for air conditioning and refrigeration products, and Tecumseh's products are sold in over 110 countries around the world. Tecumseh's headquarters have been located in Lenawee County for many years, but a majority of the current directors have closed the manufacturing operations in Tecumseh, Michigan and have authorized relocation of Tecumseh's headquarters to Washtenaw County later this year. 8. Venue is proper in this Court because Tecumseh has its principal place of business and its registered office in Lenawee County. In addition, Plaintiff's causes of action arose, and its injuries are occurring, in Lenawee County, Michigan. 9. The amount in controversy in this action exceeds $25,000, exclusive of costs, interest and attorney fees, and Plaintiff requests declaratory, injunctive and equitable relief. 10. This Court has jurisdiction over the parties and all claims raised herein pursuant to Michigan's general jurisdiction statutes. BACKGROUND FACTS 11. On April 4, 2008, the majority of the Board of Tecumseh (including Peter M. Banks ("Banks") and David M. Risley ("Risley")) amended Tecumseh's bylaws to improperly frustrate the right of shareholders to seek a special meeting of the shareholders. Specifically, the Board changed the bylaws to state that a special meeting may be called only by "shareholders Page 13 of 19 pages entitled to vote not less than an aggregate of seventy-five percent (75%) of the outstanding shares of the Corporation having the right to vote at such special meeting." See Exhibit 1. The previous provision allowed holders of 50% of the outstanding voting shares to request a special meeting of the shareholders. 12. There was no justification for this amendment to the bylaws. Imposing a 75% threshold on the ability of shareholders to call a special meeting is an unreasonable interference with shareholder voting rights and is inconsistent with Michigan law and policy, including because, under the Michigan Business Corporation Act, holders of only a majority of the voting shares are required to remove a director. See, e.g., MCL 450.1511(1). 13. The obvious and intended impact of the Board's amendment of the bylaws was to frustrate and disenfranchise the ability of voting shareholders -- the owners of Tecumseh -- to request a special meeting of the voting shareholders. At such a meeting, the voting shareholders can elect the Board of their choosing and ensure that the Board has the shareholders' -- and not the directors'-- best interests at heart. 14. The majority of the directors of Tecumseh, because of their positions of control and authority as directors of Tecumseh, were able to and did cause the wrongful acts complained of herein. They have improperly interfered, and by taking these additional entrenching actions continue to interfere, with Plaintiff's and the other shareholders' right to request a special meeting. COUNT I 15. Plaintiff incorporates Paragraphs 1 through 14, above. 16. Tecumseh, through the majority of its existing directors, has taken actions to thwart and interfere with the voting rights of Plaintiff and the other Tecumseh shareholders. Such actions must be declared void and of no force or effect to avoid irreparable harm to Plaintiff and the other Tecumseh shareholders. Page 14 of 19 pages 17. The Board's passage of the amendment to the bylaws, which improperly increased from 50% to 75% the percentage of voting shares necessary to call a special meeting of shareholders was improper, invalid, and is inconsistent with Michigan law and policy. 18. There is an actual controversy within this Court's jurisdiction between Plaintiff and Tecumseh, pursuant to MCR 2.605. 19. This Court should immediately declare that the amendment to the bylaws is invalid and of no force and effect, and should issue a preliminary and permanent injunction to that effect. 20. Unless this Court invalidates the bylaw immediately, Plaintiff will suffer irreparable injury through the loss and impairment of its shareholder voting interests in the unique, viable businesses of Tecumseh in which it is invested. 21. Plaintiff has no adequate remedy at law to redress these injuries. 22. There is a substantial likelihood that Plaintiff will prevail on the merits of its claims set forth herein entitling it to the declaratory and injunctive relief sought herein. 23. Plaintiff is at risk to be harmed to a greater degree by the absence of the declaratory and injunctive relief sought herein than the harm that would be suffered by Tecumseh by the granting of such relief. 24. The public interest concerning Tecumseh, a publicly-traded Michigan corporation, will not be harmed, and will in fact be protected, if the declaratory and injunctive relief requested by Plaintiff is granted. 25. Without such declarations and injunctions, Plaintiff will be significantly and irreparably damaged. Pursuant to MCR 2.605(D), Plaintiff requests that this declaratory action be advanced by the Court on its docket on an expedited basis. Page 15 of 19 pages WHEREFORE, Plaintiff respectfully requests that this Court issue a declaration of rights and a preliminary and permanent injunction against Tecumseh granting Plaintiff at least the following relief: a. Declaring invalid the amendment to Tecumseh's bylaws which increased from 50% to 75% the percentage of voting shares necessary to call a special meeting of shareholders; b. Declaring and enjoining Tecumseh and its Board from engaging in any activities beyond the ordinary course of operating the day-to-day operations of Tecumseh; c. Declaring and enjoining Tecumseh and its Board from engaging in any activity that would thwart or interfere with the voting rights of Plaintiff or the other shareholders of Tecumseh; d. Ordering Tecumseh to pay Plaintiff's attorneys fees and related expenses; and e. Granting Plaintiff costs and all other relief which the Court deems just and appropriate. COUNT II 26. Plaintiff incorporates Paragraphs 1 through 25, above. 27. Pursuant to MCL 450.1403: "A special meeting of shareholders may be called by the.... shareholders as provided in the bylaws. Notwithstanding any such provision, upon application of the holders of not less than 10% of all of the shares entitled to vote at a meeting, the circuit court.... for good cause shown, may order a special meeting of shareholders to be called...." See Exhibit 2 28. Plaintiff beneficially owns 25% of the voting shares of Tecumseh. 29. Tecumseh, through the majority of its existing directors, has taken actions to thwart and interfere with the voting rights of Plaintiff and the other Tecumseh voting shareholders. Such actions must be declared void and of no force or effect to avoid irreparable harm to Plaintiff and the other Tecumseh shareholders. 30. Plaintiff has demonstrated ample good cause, pursuant to MCL 450.1403, to justify the need for a special meeting of the shareholders, in light of the amendment to the Page 16 of 19 pages bylaws passed by the majority of the Board, as well as the prior actions of the directors to preserve their control by interfering with the right of the shareholders to nominate directors. 31. Based on the Board's consistent pattern of interfering with shareholder voting rights, this Court should avoid further litigation and delays by using its power to order a special meeting and allow shareholders to protect their rights through their votes. WHEREFORE, Plaintiff respectfully requests that this Court issue a declaration of rights and a preliminary and permanent injunction against Tecumseh granting Plaintiff at least the following relief: a. Declaring that Plaintiff has, pursuant to MCL 450.1403, demonstrated that it owns more than 10% of the outstanding voting shares of Tecumseh and has demonstrated good cause to require that a special meeting of the shareholders take place; b. Declaring and ordering that Tecumseh must notice and hold a special meeting of the shareholders within 60-90 days, at which meeting the shareholders will vote on whether to remove and replace two of the current directors of Tecumseh, Peter M. Banks and David M. Risley; c. Declaring and enjoining Tecumseh and its Board from engaging in any activities beyond the ordinary course of operating the day-to-day operations of Tecumseh; d. Declaring and enjoining Tecumseh and its Board from engaging in any activity that would thwart or interfere with the voting rights of Plaintiff or the other shareholders of Tecumseh; e. Ordering Tecumseh to pay Plaintiff's attorney fees and related expenses; and f. Granting Plaintiff costs and all other relief which the Court deems just and appropriate. Page 17 of 19 pages VERIFICATION I declare that the factual statements contained in the foregoing Verified Complaint for Declaratory, Injunctive and Other Relief are true to the best of my information, knowledge and belief. /s/ TODD W. HERRICK ---------------------------------------- Todd W. Herrick On this 11th day of June, 2008, before me personally appeared Todd W. Herrick, who, being first duly sworn, deposes and says that he is the above named person, that he has read the foregoing Verified Complaint for Declaratory, Injunctive and Other Relief by him subscribed and that the matters therein stated are true to the best of his knowledge, information and belief. /s/ KASEY SADDISON ---------------------------------------- Notary Public, County, My Commission expires: Page 18 of 19 pages Respectfully submitted, HONIGMAN MILLER SCHWARTZ AND COHN LLP Counsel for Plaintiff By: /s/ ROBERT M. JACKSON ------------------------------------- Robert M. Jackson (P40723) Jill L. Marr (P67725) 2290 First National Building 660 Woodward Avenue Detroit, Michigan 48226 (313) 465-7430 and LUCAS LAW, PC Counsel for Plaintiff By: /s/ FREDERICK LUCAS ------------------------------------- Frederick Lucas (P29074) 7577 US Highway 12 Onsted, Michigan 49265 Dated: June 13, 2008 (517) 467-4000 Page 19 of 19 pages -----END PRIVACY-ENHANCED MESSAGE-----