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EXHIBIT 10.9
AMENDED AND RESTATED BELRON MANAGEMENT AGREEMENT
This Management Agreement (this "Agreement") is entered into as of the
18th day of December, 1997 by and between Safelite Glass Corp., a Delaware
corporation (the "Company"), and Belron International BV, a company organized
under the laws of the Netherlands ("Belron") All capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement (as defined below).
WHEREAS, on the date hereof the Company has consummated certain
transactions (such transactions being referred to herein as the "Merger"),
pursuant to that certain Merger Agreement, dated as of October 10, 1997, by and
between Vistar, Inc. an Illinois corporation ("Vistar") and the Company (the
"Merger Agreement") and, as a result of the Merger, Vistar will be merged into
Safelite and Safelite will be the surviving entity and successor to Vistar;
WHEREAS, this Agreement amends and restates that certain Management
Agreement by and between Belron and Vistar, Inc., an Illinois corporation
("Vistar") dated March 1, 1996 (the "Prior Agreement") subject to Section 4
herein;
WHEREAS, Belron has itself or has access to considerable experience and
expertise in the fields of international finance, purchasing, management, and
manufacturing and trading in automotive glass and products ancillary thereto,
and other management skills and services;
WHEREAS, the Company will require Belron's special skills and
management advisory services in connection -with its general business
operations; and
WHEREAS, Belron is willing to provide such skills and services to the
Company.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. SERVICES. Belron hereby agrees that, during the term of this
Agreement (the "Term"), it will:
a. provide the Company with advice and assistance in
obtaining the full benefits of Belron's international associations and
expertise including, without limitation (to the extent not
contractually prohibited), making available to the Company:
(i) its relationships in the international financial
community;
(ii) its worldwide purchasing influence and relationships; and
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(iii) its marketing, legal, taxation, accounting and credit
control expertise;
b. provide the Company with advice and assistance with
respect to marketing and communications; and
c. provide the Company with such other services as may
reasonably be agreed between the parties from time to time.
Nothing in this Agreement requires or shall be construed to require Belron to
provide the Company with or procure the use of any of its or its affiliates'
intellectual property, including but not limited to, its inventions, processes,
patents, trademarks, trade names, service marks, or copyrights, and any
applications and registrations pertaining thereto, other than on an arms' length
basis.
2. PAYMENT OF FEES. The Company hereby agrees during the Term, pay to
Belron (or its designee) a management fee in an amount equal to $1,000,000 per
annum. in exchange for the services provided to the Company by Belron, such fee
being payable by the Company quarterly in advance, the first such payment to be
made at or after the closing of the Merger (provided, however, that if during
any fiscal quarter of the Company a Default or Event of Default (as such terms
are defined in the Credit Agreement) exists, only one-half of such fee for such
fiscal quarter may be paid and the remaining one-half of such fee shall be paid
at such time as all Defaults and Events of Default (as defined in the Credit
Agreement) have been cured or waived). Each payment made pursuant to this
Section 2 shall be paid by wire transfer of immediately available federal funds
to the account(s) specified by Belron (or its designee).
3. TERM. This Agreement shall continue in full force and effect,
unless and until terminated by mutual consent of the parties, for so long as
Belron (or any successor or permitted assign, as the case may be) continues to
carry on the business of providing services of the type described in Section 1
above; provided, however, that (a) either party may terminate this Agreement
following a material breach of the terms of this Agreement by the other party
hereto and a failure to cure such breach within 30 days following written notice
thereof and (b) this Agreement shall automatically terminate upon the sale in an
initial public offering registered under the Securities Act of 1933, as amended
(the "Securities Act"), of shares of the Company's common stock\; and provided
further that each of (i) the obligations of the Company under Section 5 below,
(ii) any and all accrued and unpaid obligations of the Company owed under
Section 2 above and (iii) the provisions of Section 8 shall survive any
termination of this Agreement to the maximum extent permitted under applicable
law.
4. EFFECT OF AGREEMENT. This Agreement replaces the Prior Agreement,
and the Prior Agreement is no longer of any force or effect, by agreement of the
parties hereto and thereto, as evidenced by the signature of such parties below;
provided, however, that the parties agree and acknowledge that pursuant to the
Prior Agreement the Company shall pay
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to Belron (or to its designees) the amounts as set forth on Exhibit A attached
hereto for the purposes set forth on Exhibit A and in the manner as set forth in
Section 2 hereof.
5. EXPENSES; INDEMNIFICATION.
a. Expenses. The Company agrees to pay on demand all expenses incurred
by Belron and its affiliates (or any of them) in connection with this
Agreement, the Merger and such other transactions and all operations
hereunder or otherwise incurred in connection therewith, including but
not limited to (i) the fees and disbursements of: (A) Xxxxxx Xxxxxx &
Zavis, counsel to Belron, (B) Xxxxxx Xxxxxxxx, accountant to Belron,
and (C) any other consultants or advisors retained by Belron or either
of the parties identified in clauses (A) and (B) arising in connection
therewith (including but not limited to the preparation, negotiation
and execution of this Agreement and any other agreement executed in
connection herewith or in connection with the Merger or the
consummation of the other transactions contemplated hereby (and any and
all amendments, modifications, restructurings and waivers, and
exercises and preservations of rights and remedies hereunder or
thereunder) and the operations of the Company and any of its
subsidiaries), and (ii) any out-of-pocket expenses incurred by Belron
in connection with the provision of services hereunder or the
attendance at any meeting of the board of directors (or any committee
thereof) of the Company or any of its affiliates.
b. Indemnity and Liability. In consideration of the execution and
delivery of this Agreement by Belron, the Company hereby agrees to
indemnify, exonerate and hold each of Belron, and its affiliates, and
each of their respective partners, shareholders, affiliates, directors,
officers, fiduciaries, employees and agents and each of the partners,
shareholders, affiliates, directors, officers, fiduciaries, employees
and agents of each of the foregoing (collectively, the "Indemnitees")
free and harmless from and against any and all actions, causes of
action, suits, losses, liabilities and damages, and expenses in
connection therewith, including without limitation reasonable
attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnitees or any of them as a result
of, or arising out of, or relating to the Merger, the execution,
delivery, performance, enforcement or existence of the Prior Agreement,
this Agreement or the transactions contemplated hereby or thereby,
except for any such Indemnified Liabilities arising on account of such
Indemnitee's gross negligence or willful misconduct, and if and to the
extent that the foregoing undertaking may be unenforceable for any
reason, the Company hereby agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law. None of the Indemnitees
shall be liable to the Company or any of its affiliates for any act or
omission suffered or taken by such Indemnitee that does not constitute
gross negligence or willful gross negligence or misconduct.
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6. ASSIGNMENT, ETC. Except as provided below, neither party shall have
the right to assign this Agreement. Belron acknowledges that its services under
this Agreement are unique. Accordingly, any purported assignment by Belron shall
be void. Notwithstanding the foregoing, Belron may assign all or part of its
rights and obligations hereunder to any affiliate of Belron which provides
services similar to those called for by this Agreement, in which event Belron
shall be released of all of its rights and obligations hereunder.
7. AMENDMENTS AND WAIVERS. No amendment or waiver of any term,
provision or condition of this Agreement shall be effective, unless in writing
and executed by each of Belron and the Company. No waiver on any one occasion
shall extend to or effect or be construed as a waiver of any right or remedy on
any future occasion. No course of dealing of any person nor any delay or
omission in exercising any right or remedy shall constitute an amendment of this
Agreement or a waiver of any right or remedy of any party hereto.
8. MISCELLANEOUS.
a. Choice of Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the State of New York
without giving effect to any choice or conflict of law provision or
rule that would cause the application of the domestic substantive laws
of any other jurisdiction.
b. Consent to Jurisdiction. Each of the parties agrees that all
actions, suits or proceedings arising out of or based upon this
Agreement or the subject matter hereof shall be brought and maintained
exclusively in the federal and state courts of the State of New York.
Each of the parties hereto by execution hereof (i) hereby irrevocably
submits to the jurisdiction of the federal and state courts in the
State of New York for the purpose of any action, suit or proceeding
arising out of or based upon this Agreement or the subject matter
hereof and (ii) hereby waives to the extent not prohibited by
applicable law, and agrees not to assert, by way of motion, as a
defense or otherwise, in any such action, suit or proceeding, any claim
that it is not subject personally to the jurisdiction of the
above-named courts, that it is immune from extraterritorial injunctive
relief or other injunctive relief, that its property is exempt or
immune from attachment or execution, that any such action, suit or
proceeding may not be brought or maintained in one of the above-named
courts, that any such action, suit or proceeding brought or maintained
in one of the above-named courts should be dismissed on grounds of
forum non conveniens, should be transferred to any court other than one
of the above-named courts, should be stayed by virtu of the pendency of
any other action, suit or proceeding in any court other than one of the
above-named courts, or that this Agreement or the subject matter hereof
may not be enforced in or by any of the above-named courts. Each of the
parties hereto hereby consents to service of process in any such suit,
action or proceeding in any manner permitted by the laws of the State
of New York, agrees that service of process by registered or certified
mail, return receipt requested, at the address specified in or
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pursuant to Section 10 is reasonably calculated to give actual notice
and waives and agrees not to assert by way of motion, as a defense or
otherwise, in any such action, suit or proceeding any claim that
service of process made in accordance with Section 10 does not
constitute good and sufficient service of process. The provisions of
this Section 8.b. shall not restrict the ability of any party to
enforce in any court any judgment obtained in a federal or state court
of The Commonwealth of Massachusetts.
c. Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES,
AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT,
OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF
ANY ISSUE, CLAIM, DEMAND, CAUSE OF ACTION, ACTION, SUIT OR PROCEEDING
ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT HEREOF, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN
CONTRACT OR TORT OR OTHERWISE. Each of the parties hereto acknowledges
that it has been informed by each other party that the provisions of
this Section 8.c. constitute a material inducement upon which such
party is relying and will rely in entering into this Agreement and the
transactions contemplated hereby. Any of the parties hereto may file an
original counterpart or a copy of this Agreement with any court as
written evidence of the consent of each of the parties hereto to the
waiver of its right to trial by jury.
9. MERGER/ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes any prior communication or agreement with respect thereto.
10. NOTICES. All notices, demands, and communications of any kind which
any party may require or desire to serve upon any other party under this
Agreement shall be in writing and shall be served upon such other party and such
other party's copied persons as specified below by personal delivery to the
address set forth for it below or to such other address as such party shall have
specified by notice to each other party or by mailing a copy thereof by
certified or registered mail, or by Federal Express or any other reputable
overnight courier service, postage prepaid, with return receipt requested,
addressed to such party and copied persons at such addresses. In the case of
service by personal delivery, it shall be deemed complete on the first business
day after the date of actual delivery to such address. In case of service by
mail or by overnight courier, it shall be deemed complete, whether or not
received, on the third day after the date of mailing as shown by the registered
or certified mail receipt or courier service receipt. Notwithstanding the
foregoing, notice to any party or copied person of change of address shall be
deemed complete only upon actual receipt by an officer or agent of such party or
copied person.
If to the Company, to it at:
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Safelite Glass Corp.
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Secretary
If to Belron, to it at:
Belron International NV
Xxxx Xxxxxxxxx
X.X. Xxx 000
Xxxxxxxxxx
Xxxxxxx
Xxxxxxxxxxx Antilles
Telecopy: 59-9-75-449
and
Director: Group Legal Services
Attention: Xxxxx Xxxxxxxxxxx
Belron International
c/o Kings Observatory
Xxx Xxxx Xxxx Xxxxxxxx
Xxxxxx XX0 0XX
XXXXXXX
Telecopy: 00-000-000-0000
with a copy to:
Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
11. SEVERABILITY. If in any judicial or arbitral proceedings a court or
arbitrator shall refuse to enforce any provision of this Agreement, then such
unenforceable provision shall be deemed eliminated from this Agreement for the
purpose of such proceedings to the extent necessary to permit the remaining
provisions to be enforced. To the full extent, however, that the provisions of
any applicable law may be waived, they are hereby waived to the end that this
Agreement be, deemed to be valid and binding agreement enforceable in accordance
with its terms, and in the event that any provision hereof shall be found to be
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invalid or unenforceable, such provision shall be construed by limiting it so as
to be valid and enforceable to the maximum extent consistent with and possible
under applicable law.
12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by each of the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf as an instrument under seal as of the date first above
written by its officer or representative thereunto duly authorized.
THE COMPANY: SAFELITE GLASS CORP.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President
BELRON: BELRON INTERNATIONAL BV
By:
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Name:
Title:
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf as an instrument under seal as of the date first above
written by its officer or representative thereunto duly authorized.
THE COMPANY: SAFELITE GLASS CORP.
By:
--------------------------------
Name:
Title:
BELRON: BELRON INTERNATIONAL BV
By: /s/ XX Xxxxxxxxxxx
--------------------------------
Name: XX Xxxxxxxxxxx
Title: Director
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