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EXHIBIT 10.14
REGISTRATION AGREEMENT
This REGISTRATION AGREEMENT (this "Agreement"), dated as of December
18, 1997, is by and among SAFELITE GLASS CORP., a Delaware corporation (the
"Company"), BELRON (USA) BV, a company organized under the laws of the
Netherlands ("Belron"), those shareholders of the Company listed on Exhibit A
attached hereto (the "Xxxxxxx Shareholders"), those shareholders of the Company
listed on Exhibit B attached hereto, including XXXXXX X. XXX EQUITY FUND III,
L.P., a Delaware limited partnership ("TH Xxx")(collectively, the "TH Xxx
Shareholders"), and those shareholders of the Company listed on Exhibit C
attached hereto (collectively, the "Management Shareholders"). Belron, each of
the Xxxxxxx Shareholders, each of the TH Xxx Shareholders and each of the
Management Shareholders are referred to herein individually as a "Shareholder"
and collectively as the "Shareholders".
WITNESSETH:
WHEREAS, the Company and the Shareholders deem it desirable to enter
into this Agreement to establish certain rights and restrictions with respect to
the registration of the shares of capital stock held by the Shareholders.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
of the parties hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS. The following terms will have the meaning for purposes
of this Agreement set forth below for such term.
"AFFILIATE" of any Person means a Person controlling, under common
control with or controlled by such Person.
"BOARD" means the board of directors of the Company.
"BUSINESS DAY" means any day on which business is ordinarily conducted
in the State of New York, excluding Saturday, Sunday or any day on which the
national banks located in the City of New York are required by law (other than a
general banking moratorium or holiday for a period exceeding more than four (4)
consecutive days) to be closed. If any notice or event is required to be
delivered or occur, pursuant to the terms of this Agreement, on a day which is
not a Business Day, such notice or event shall be delivered or occur on the next
Business Day after the original required delivery or occurrence date.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the shares of Voting Common Stock and Non-Voting
Common Stock.
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"IPO" means an initial public offering of the Company's capital stock
pursuant to the Securities Act.
"NON-VOTING COMMON STOCK" means the Class B Non-Voting Common Stock of
the Company, par value $0.01 per share.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization or a governmental entity, or any department, agency or political
subdivision thereof.
"PUBLIC SALE" means any sale of any Registrable Securities to the
public pursuant to an offering registered under the Securities Act or to the
public through a broker, dealer or market maker pursuant to the provisions of
Rule 144 adopted under the Securities Act.
"REGISTRABLE SECURITIES" means any shares of Common Stock held by the
Shareholders; provided, however, that Registrable Securities shall not include
any shares of Common Stock that have been registered pursuant to the Securities
Act or that have been sold to the public pursuant to Rule 144 of the Commission
promulgated under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"VOTING COMMON STOCK" means the Class A Voting Common Stock of the
Company, par value $0.01 per share.
2. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. Subject to the terms and conditions set
forth below, at any time after the Company has completed an IPO, Shareholders
may request registration under the Securities Act of all or any portion of their
Registrable Securities on Form S-1 or any similar long-form registration
("Long-Form Registrations"), and registration under the Securities Act of all or
any portion of their Registrable Securities on Form S-2 or S-3 or any similar
short-form registration ("Short-Form Registrations"), if available, as follows:
(i) TH Xxx shall have the right to request up to two (2)
Demand Registrations.
(ii) From and after the earlier of (i) (x) four (4) years
from the date hereof and (y) such time as TH Xxx has
exercised its right to request one (1) Demand
Registration as provided herein, or (ii) such time as
TH Xxx has exercised its right to request two (2)
Demand Registrations as provided herein, Belron shall
have the right to request up to two (2) Demand
Registrations.
(iii) After Belron has exercised its right to request two
Demand Registrations, TH Xxx shall have the right to
request a third Demand Registration if, at
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the time of such request, the TH Xxx Shareholders, in
the aggregate, hold more than ten percent (10%) of
the outstanding Common Stock.
(iv) Notwithstanding anything in this Agreement to the
contrary, no Shareholder shall be entitled to request
a Demand Registration with respect to, and the
Company shall not be obligated to take any action to
effect the registration of, any shares of Voting
Common Stock held by the Shareholders for the first
three (3) years after the date of this Agreement.
All registrations requested pursuant to this SECTION 2(a) are referred
to herein as "Demand Registrations". Each request for a Demand Registration
shall specify the approximate number of Registrable Securities requested to be
registered. Within ten (10) days after receipt of any such request, the Company
shall give written notice of such requested registration to all other holders of
Registrable Securities and shall, subject to Sections 2(c) and 2(d) hereof,
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within fifteen
(15) days after the receipt of the Company's notice; provided that Belron shall
not have the right to be included in any Demand Registrations requested by TH
Xxx; provided further that the Xxxxxxx Shareholders shall not have the right to
be included in any Demand Registrations requested by any person until: (i) the
third year anniversary of the date of this Agreement and (ii) such time as the
Xxxxxxx Shareholders own at least one more share of Common Stock than the TH Xxx
Shareholders.
(b) REGISTRATION EXPENSES; DEMAND REGISTRATIONS. The Company shall pay
all Registration Expenses (as defined in SECTION 6(a) hereof) for Demand
Registrations requested by the holders of Registrable Securities provided in
(a), above, whether or not any such Demand Registration becomes effective. A
registration shall not count as one of the permitted Demand Registrations until
it has become effective (unless such Demand Registration has not become
effective due to the fault of, or at the request of, the holders requesting such
registration).
(c) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not include in
any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of at least 65% of the
Registrable Securities initially requesting such registration. If a Demand
Registration is an underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such offering, exceeds the number of Registrable Securities and
other securities, if any, which can be sold therein without adversely affecting
the marketability of the offering, the Company shall include in such
registration (i) first, the Registrable Securities of the Shareholder(s)
requesting such Demand Registration (TH Xxx or Belron, as the case may be), (ii)
second, the Registrable Securities of the other Shareholders entitled to be
included in such Demand Registration pro rata among such Shareholders on the
basis of the number of shares of Registrable Securities owned by each such
Shareholder and (iii) third, other securities requested to be included in such
Demand Registration.
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(d) RESTRICTIONS ON LONG-FORM REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration within ninety (90) days after the
effective date of a previous Demand Registration or a previous registration in
which the holders of Registrable Securities were given piggyback rights pursuant
to SECTION 3 hereof and in which there was no reduction in the number of
Registrable Securities requested to be included. The Company may postpone for up
to ninety (90) days the filing or the effectiveness of a registration statement
for a Demand Registration if the Company reasonably determines in good faith
that such Demand Registration could reasonably be expected to have a material
adverse effect on any proposal or plan by the Company to engage in any material
transaction including any acquisition of assets, any merger, consolidation,
tender offer, reorganization or similar transaction; provided that, in such
event, the holders of Registrable Securities initially requesting such Demand
Registration shall be entitled to withdraw such request and, if such request is
withdrawn, such Demand Registration shall not count as one of the permitted
Demand Registrations hereunder and the Company shall pay all Registration
Expenses in connection with such registration.
(e) SELECTION OF UNDERWRITERS. The Shareholder requesting a Demand
Registration (Belron or TH Xxx, as the case may be) shall have the right to
select the investment banker(s) and manager(s) to administer the offering,
subject to the approval of the Company, which shall not be unreasonably
withheld.
3. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register any
of its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
shall give prompt written notice to all holders of Registrable Securities of its
intention to effect such a registration and shall, subject to Sections 3(c) and
3(d) hereof, include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within twenty (20) days after the receipt of the Company's notice; provided that
the Xxxxxxx Shareholders shall not have the right to be included in any
Piggyback Registrations until: (i) the third year anniversary of the date of
this Agreement and (ii) such time as the Xxxxxxx Shareholders own at least one
more share of Common Stock than the TH Xxx Shareholders.
(b) PIGGYBACK EXPENSES. The Company shall pay all Registration Expenses
(as defined in SECTION 6(A) hereof) incurred by the holders of Registrable
Securities for Piggyback Registrations, whether or not any such Piggyback
Registration becomes effective.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the marketability
of the offering, the Company shall include in such registration (i) first, the
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securities the Company proposes to sell, (ii) second, the Registrable Securities
requested to be included in such registration by the TH Xxx Shareholders, the
Management Shareholders and/or the Xxxxxxx Shareholders, pro rata among such
Shareholders on the basis of the number of shares of Registrable Securities
owned by each such Shareholder, (iii) third, the Registrable Securities
requested to be included in such registration by Belron and (iv) fourth, other
securities requested to be included in such registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company shall include
in such registration (i) first, the securities requested to be included therein
by the holders requesting such registration, (ii) second, the Registrable
Securities requested to be included in such registration by the TH Xxx
Shareholders, the Management Shareholders and/or the Xxxxxxx Shareholders, pro
rata among such Shareholders on the basis of the number of shares of Registrable
Securities owned by each such Shareholder, (iii) third, the Registrable
Securities requested to be included in such registration by Belron and (iv)
fourth, other securities requested to be included in such registration.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering must be approved by the holders of a majority of the Registrable
Securities included in such Piggyback Registration, which approval shall not be
unreasonably withheld.
4. HOLDBACK AGREEMENTS.
(a) Each holder of Registrable Securities shall not effect any Public
Sale of equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven (7) days prior
to and the one hundred and eighty (180)-day period beginning on the effective
date of the registration statement filed by the Company under the Securities Act
for its underwritten IPO (except as part of such underwritten registration),
unless the underwriters managing the registered public offering otherwise agree.
(b) Each holder of Registrable Securities shall not effect any Public
Sale of equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven (7) days prior
to and the ninety (90)-day period beginning on the effective date of any
underwritten offering pursuant to a registration statement filed by the Company
under the Securities Act (except as part of such underwritten registration)
subsequent to consummation of the Company's IPO, unless the underwriters
managing the registered public offering otherwise agree.
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(c) The Company (i) shall not effect any public sale or distribution of
its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven (7) days prior to and during
the ninety (90)-day period beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration (except as part
of such underwritten registration or pursuant to registrations on Form S-8 or
any successor form), unless the underwriters managing the registered public
offering otherwise agree, and (ii) shall cause each holder of at least five
percent (5%) (on a fully-diluted basis) of its Common Stock, or any securities
convertible into or exchangeable or exercisable for Common Stock, purchased from
the Company at any time after the date of this Agreement (other than in a
registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
5. REGISTRATION PROCEDURES. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this
Agreement, the Company shall use its reasonable best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof by a holder of Registrable Securities
requesting registration, and pursuant thereto the Company shall as expeditiously
as possible:
(a) prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use its reasonable best efforts to
cause such registration statement to become effective (provided that, before
filing a registration statement or prospectus or any amendments or supplements
thereto, the Company shall furnish to the counsel selected by the holders of a
majority of the Registrable Securities covered by such registration statement
copies of all such documents proposed to be filed, which documents shall be
subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than ninety (90) days
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
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(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time when
a prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Company shall prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the National Association of
Securities Dealers, Inc. ("NASD") automated quotation system and, if listed on
the NASD automated quotation system, use its reasonable best efforts to secure
designation of all such Registrable Securities covered by such registration
statement as a NASDAQ "national market system security" within the meaning of
Rule 11 Aa2-1 of the Commission or, failing that, to secure NASDAQ authorization
for such Registrable Securities and, without limiting the generality of the
foregoing, use its reasonable best efforts to arrange for at least two market
makers to register as such with respect to such Registrable Securities with the
NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including effecting a stock split or a combination of
shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, its counsel and the independent accountants who have certified the
financial
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statements to supply information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement, as shall be reasonably necessary in order to conduct a reasonable and
diligent investigation within the meaning of the Securities Act;
(j) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve (12) months beginning with the first day
of the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which, in its sole and
exclusive judgment, might be deemed to be an underwriter or a controlling person
of the Company, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of material, furnished
to the Company in writing, which in the reasonable judgment of such holder and
its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(m) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities; and
(n) use its reasonable best efforts to furnish to each seller of
Registrable Securities, addressed to such seller, a "cold comfort" letter signed
by the independent public accountants who have certified the Company's financial
statements included in such registration statement, covering substantially the
same matters with respect to such registration statement (and the prospectus
included therein), and with respect to events subsequent to the date of such
financial statements, as are customarily covered in accountants' letters
delivered to underwriters in underwritten public offerings of securities and
such other matters as the holders of a majority of the Registrable Securities
being sold reasonably request (provided that such Registrable Securities
constitute at least 25% of the securities covered by such registration
statement);
6. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees and expenses of
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compliance with securities or blue sky laws, printing expenses, messenger and
delivery expenses, fees and disbursements of custodians, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), shall be borne as provided in this Agreement, except
that the Company shall, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on the NASD
automated quotation system.
(b) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
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to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided that the obligation to indemnify
shall be individual, not joint and several, for each holder and shall be limited
to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. The Company also
agrees to make such provisions, as are reasonably requested by any indemnified
party, for contribution to such party in the event the Company's indemnification
is unavailable for any reason.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may participate in any
registration hereunder which is underwritten unless such Person (i) agrees to
sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
9. NOTICES. Any notices, consents or other communication required to be sent or
given hereunder by any of the parties shall in every case be in writing and
shall be deemed properly served if (a) delivered personally, (b) sent by
registered or certified mail, in all such cases with first class postage
prepaid, return receipt requested, (c) delivered by a recognized overnight
courier service, or (d) sent by telecopy transmission to the parties at the
addresses as set forth below or at such other addresses as may be furnished in
writing.
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(a) If to the Company:
Safelite Glass Corp.
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: President
Telecopy: (000) 000-0000
with copies to:
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 The Kings Observatory
Xxx Xxxx Xxxx Xxxxxxxx
Xxxxxx XX0 0XX
XXXXXXX
Telecopy: 00-000-000-0000
and
Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
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and
The Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx, 00000
Attention: Xxxxxxx X. XxXxxx
Xxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
and
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
(b) If to Belron:
Belron International NV
Xxxx Xxxxxxxxx
X.X. Xxx 000
Xxxxxxxxxx
Xxxxxxx
Xxxxxxxxxxx Antilles
Telecopy: 59-9-75-449
with a copies to:
Director: Group Legal Services
Attention: Xxxxx Xxxxxxxxxxx
Belron International
c/o The Kings Observatory
Xxx Xxxx Xxxx Xxxxxxxx
Xxxxxx XX0 0XX
XXXXXXX
Telecopy: 00-000-000-0000
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and
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(c) If to the TH Xxx Shareholders or the Management
Shareholders:
The Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx, 00000
Attention: Xxxxxxx X. XxXxxx
Xxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Date of service of such notice shall be (w) the date such notice is personally
delivered, (x) three days after the date of mailing if sent by certified or
registered mail, (y) one day after date of delivery to the overnight courier if
sent by overnight courier or (z) if transmitted by telecopy, upon receipt of
confirmation of delivery, provided that, within three (3) days after such
transmission, service is also made by personal delivery.
10. SEVERABILITY. If any provision of this Agreement is, for any reason, invalid
or unenforceable, the remaining provisions of this Agreement will nevertheless
be valid and enforceable and will remain in full force and effect. Any provision
of this Agreement that is held invalid or unenforceable by a court of competent
jurisdiction will be deemed modified to the extent necessary to make it valid
and enforceable and as so modified will remain in full force and effect.
11. AMENDMENT AND WAIVER. This Agreement may be amended, or any provision of
this Agreement may be waived, provided that any such amendment or waiver will be
binding on a party hereto only if such amendment or waiver is set forth in a
writing executed by the parties
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14
hereto; provided, however, that the consent of a Shareholder shall not be
required with respect to an amendment to or waiver of this Agreement if (i) such
Shareholder owns less than five percent (5%) of the fully-diluted Common Stock
then outstanding and (ii) such amendment or waiver could not reasonably be
expected to adversely affect such Shareholder in any material respect. The
waiver by any such party hereto of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any other breach.
12. COUNTERPARTS. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties hereto and
delivered to the others.
13. GOVERNING LAW. This Agreement will be governed and construed in accordance
with the laws of the State of New York, without giving effect to its principles
of conflicts of laws.
14. HEADINGS. The headings of this Agreement are included for purposes of
convenience only and will not affect the construction or the interpretation of
any of its provisions of this Agreement.
15. SUCCESSORS. Except as otherwise provided herein, this Agreement shall bind
and inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
16. ASSIGNMENT. This Agreement shall not be directly or indirectly assignable or
delegable by any party without the prior written consent of the other parties.
17. NO STRICT CONSTRUCTION. The language used in this Agreement will be deemed
to be the language chosen by the parties hereto to express their mutual intent
and no rule of strict construction will be applied against any party hereto.
18. DOCUMENTS. Each party will execute all documents and take such other actions
as the other parties may reasonably request in order to consummate the
transactions provided for herein and to accomplish the purposes of this
Agreement.
19. ARBITRATION. If any controversy or claim from the application and
interpretation of the terms of this Agreement cannot be settled by the parties
hereto within a reasonable period of time, then the controversy or claim shall
be settled by arbitration, unless the controversy or claim is prohibited by the
law from being arbitrated. Arbitration shall be the sole remedy for disputes
hereunder, unless the controversy or claim is prohibited by the law from being
arbitrated. The arbitration shall be conducted in accordance with the Rules of
the American Arbitration Association (the "AAA Rules") and held in New York, New
York. Any party hereunder seeking arbitration shall file a written notice of
demand for arbitration with the other parties hereunder and with the American
Arbitration Association. Three arbitrators shall be appointed in accordance with
the AAA Rules ("Arbitrators"). The decision and award of the Arbitrators shall
be binding among the parties and judgment on the award may be entered in any
court having jurisdiction as
-14-
15
provided in SECTION 21 hereof. The Arbitrators shall have no previous employment
by, consulting with, or business relationship with any party or its Affiliates.
Questions regarding discovery or evidentiary issues shall be referred to the
Arbitrators and the Arbitrators' decisions shall be final and binding on such
issues. The Arbitrators may consider any material relevant to the subject matter
of the dispute even if such material may also relate to issues not subject to
arbitration. An audio recording of any arbitration hearing shall be made. The
Arbitrators may award any appropriate relief including without limitation, an
award for damages, specific performance or other equitable relief. The award
shall be in writing, accompanied by a written opinion detailing the reasons for
the award, and signed by the Arbitrators. Each party to such arbitration shall
each pay its own expenses and fees, except that administrative expenses
(including the Arbitrators' fee) shall be divided equally between the parties to
the arbitration.
20. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH OF THE PARTIES HERETO
HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN
THE STATE OF NEW YORK AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER RELATED DOCUMENTS
SHALL BE LITIGATED IN SUCH COURTS. EACH OF THE PARTIES HERETO ACCEPTS FOR ITSELF
AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE OR FORUM
NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS AGREEMENT. BELRON HEREBY DESIGNATES AND APPOINTS
CT CORPORATION SYSTEM AT 000 X. XXXXXXX XXXXXX, XXXXXXX, XXXXXXXX 00000 AND SUCH
OTHER PERSONS AS MAY HEREINAFTER BE SELECTED BY BELRON, WHICH PERSONS SHALL
IRREVOCABLY AGREE IN WRITING TO SO SERVE AS AGENT TO RECEIVE ON BELRON'S BEHALF
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE
BEING HEREBY ACKNOWLEDGED BY BELRON TO BE EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT. A COPY OF ANY SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL
TO BELRON AS PROVIDED HEREIN, EXCEPT THAT UNLESS OTHERWISE PROVIDED BY
APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF
SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY BELRON REFUSES TO ACCEPT SERVICE,
THEN BELRON HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE
SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY OTHER PARTY
HERETO TO SERVE PROCESS ON BELRON IN ANY OTHER MANNER PERMITTED BY LAW.
21. WAIVER OF JURY TRIAL. THE PARTIES HEREBY, BY EXECUTION HEREOF, WAIVE ANY AND
ALL RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF THIS AGREEMENT OR ANY
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16
DEALINGS AMONG THEM RELATING TO THE SUBJECT MATTER OF THE PROPOSED TRANSACTIONS
AND THE RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS
INTENDED TO ENCOMPASS ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND
THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. THE PARTIES ACKNOWLEDGE THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY
RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE
TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. THE PARTIES HEREBY
FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING
TO THE TRANSACTION CONTEMPLATED HEREBY. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
22. ENTIRE AGREEMENT. Except as otherwise expressly set forth herein, this
Agreement embodies the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
23. REMEDIES. The parties acknowledge and agree that money damages may not be an
adequate remedy for any breach or threatened breach by a party of its
obligations under this Agreement, and for that reason, among others, the
non-breaching party or parties will be irreparably damaged and may not have an
adequate remedy at law. Therefore, notwithstanding the provisions of SECTION 19,
the parties agree that the other party may pursue injunctive relief and/or
specific performance in any court of competent jurisdiction to enforce any of
the provisions of this Agreement. If any of the parties institutes any such
action or proceeding solely for injunctive relief any/or specific performance,
then the other parties hereby waive arbitration thereof under SECTION 19 for
such action solely as it relates to injunctive relief and/or specific
performance and shall not assert in any such action or proceeding the claim or
defense that any matter of injunctive relief and/or specific performance is to
be submitted to arbitration under SECTION 19. The foregoing remedy is in
addition to any and all other remedies which a party may have.
24. NO INCONSISTENT AGREEMENTS. None of the parties hereto will hereafter enter
into any agreement which is inconsistent with the rights granted to the parties
in this Agreement.
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17
25. THIRD PARTIES. Nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any person or entity, other than the parties
to this Agreement and their respective permitted successors and assigns, any
rights or remedies under or by reason of this Agreement.
26. ROLE OF TRUSTEE. Each of Xxxxx X. Xxxxxx, Xxxxxxx Xxxxxx and Xxxxxx
Xxxxxxxxx is executing this Agreement as a trustee of the Xxxxxxx Trusts listed
on Exhibit A attached hereto and shall be conclusively deemed to be executing
such documents only in such capacity. Each of Xxxxx X. Xxxxxx, Xxxxxxx Xxxxxx
and Xxxxxx Xxxxxxxxx shall not be liable personally to any other party hereto in
the event of any actual or alleged breach of any provision contained herein by
any of the Xxxxxxx Trusts. Each party agrees to look solely to the estate of the
Xxxxxxx Trusts and not to any trustee thereof in such trustee's individual
capacity for any damages or other remedy for a breach by a Xxxxxxx Trust of any
provision contained herein, except in the event of any willful breach of this
Agreement established by clear and convincing evidence.
* * * *
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18
IN WITNESS WHEREOF, parties hereto have caused this Registration
Agreement to be signed as of the date first written above.
SAFELITE GLASS CORP.:
By: /s/ X. X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
BELRON (USA) BV:
By: /s/ [signature illegible]
-----------------------------------
Name:
Title:
XXXXXXX SHAREHOLDERS:
FAMILY REVOCABLE TRUST
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx, not individually
but solely as trustee
J-K GIFT TRUST U/A/D 12/16/91
XXXXXX XXXXXXX 1995 DESCENDANTS TRUST
FOR THE FAMILY OF XXXX U/A/D 11/8/95
XXXXXX XXXXXXX 1995 DESCENDANTS TRUST
FOR THE FAMILY OF XXXXXXX U/A/D 11/8/95
XXXXXX XXXXXXX 1995 DESCENDANTS TRUST
FOR THE FAMILY OF XXXXX U/A/D 11/8/95
XXXXXX XXXXXXX 1995 GIFT TRUST FOR THE
FAMILY OF XXXX U/A/D 11/8/95
XXXXXX XXXXXXX 1995 GIFT TRUST FOR THE
FAMILY OF XXXXXXX X/X/X 00/0/00
-00-
00
XXXXXX XXXXXXX 0000 GIFT TRUST FOR THE
FAMILY OF XXXXX U/A/D 11/8/95
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx, not
individually but solely as
trustee of each of the above
seven trusts
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx, not individually
but solely as trustee of each of
the above seven trusts
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxxx, not
individually but solely as
trustee of each of the above
seven trusts
TH XXX SHAREHOLDERS:
XXXXXX X. XXX EQUITY FUND, III, L.P.
By: THL Equity Advisors III Limited
Partnership, General Partner
By: THL Equity Trust, General Partner
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx
XXXXXX X. XXX FOREIGN FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, General Partner
By: THL Equity Trust, General Partner
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx
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20
THL-CCI INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx
/s/ X. X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxx
-----------------------------------
Xxxxx X. Xxxx
/s/ Xxx X. Xxxxxxx
-----------------------------------
Xxx X. Xxxxxxx
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21
EXHIBIT A
THE XXXXXXX SHAREHOLDERS
TRUST TRUSTEE(S)
----- ----------
Family Revocable Trust Xxxxxx Xxxxxxx
X-X Gift Trust Xxxxx X. Xxxxxx
U/A/D 12/16/91 Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx 1995 Xxxxx X. Xxxxxx
Descendants Trust for the Family of Xxxx Xxxxxxx Xxxxxx
U/A/D 11/8/95 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx 1995 Xxxxx X. Xxxxxx
Descendants Trust for the Family of Xxxxxxx Xxxxxxx Xxxxxx
U/A/D 11/8/95 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx 1995 Xxxxx X. Xxxxxx
Descendants Trust for the Family of Xxxxx Xxxxxxx Xxxxxx
U/A/D 11/8/95 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx 1995 Gift Xxxxx X. Xxxxxx
Trust for the Family of Xxxx Xxxxxxx Xxxxxx
U/A/D 11/8/95 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx 1995 Gift Xxxxx X. Xxxxxx
Trust for the Family of Xxxxxxx Xxxxxxx Xxxxxx
U/A/D 11/8/95 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx 1995 Gift Xxxxx X. Xxxxxx
Trust for the Family of Xxxxx Xxxxxxx Xxxxxx
U/A/D 11/8/95 Xxxxxx Xxxxxxxxx
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22
EXHIBIT B
TH XXX SHAREHOLDERS
Xxxxxx X. Xxx Equity Fund III, L.P.
Xxxxxx X. Xxx Foreign Fund III, L.P.
THL-CCI Investors Limited Partnership
Big Bend Investments, L.P.
-22-
23
EXHIBIT C
MANAGEMENT SHAREHOLDERS
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxx X. Xxxxxxx
Xxxxx X. Xxxx
Xxxxxx Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxxxx X. Xxxxxxx
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxx
August X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx X. X'Xxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx Xxxx
Xxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
M. Xxxxx Xxxxx
Xxxx X. Xxxxxxxxxx
Xxxx Xxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxx
Xxxx Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxx
Xxxxx X. Xxxxxx, Trustee for the Xxxxxxx
Xxxxxx Xxxxxx Irrevocable Trust
Xxxxx X. Xxxxxx, Trustee for the Xxxxx
Xxxxxxxx Xxxxxx Irrevocable Trust
Xxxxxx X. Xxxxxxx
Xxxxx and Xxxxxxxx Xxxxxxx 1997
Charitable Remainder Unitrust
Xxxxxxx X. Xxxxxxxxxxxx
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