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EXHIBIT 10.10
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT (the "Agreement"),
entered into this 18th day of December, 1997 is made by and among (i) Safelite
Glass Corp., a Delaware corporation (the "Company"), (ii) Belron (USA) BV, a
company organized under the laws of the Netherlands ("Belron" and, together with
any Permitted Transferees thereof, the "Belron Shareholders"), (iii) those
Shareholders listed on Exhibit A attached hereto (together with any Permitted
Transferees thereof, the "Xxxxxxx Shareholders"), (iv) 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")) (together with any
Permitted Transferees thereof, the "TH Xxx Shareholders"), and (v) those
Shareholders of the Company listed on Exhibit C attached hereto (together with
any Permitted Transferees thereof, the "Management Shareholders"). The Belron
Shareholders, the Xxxxxxx Shareholders, the TH Xxx Shareholders and the
Management Shareholders are hereinafter collectively referred to as the
"Shareholders" and each individually referred to as a "Shareholder".
WHEREAS, the Company, the TH Xxx Shareholders and the Management
Shareholders are parties to that certain Stockholders' Agreement, dated as of
December 20, 1996 (the "Old Agreement");
WHEREAS, the TH Xxx Shareholders and the Management Shareholders own,
respectively, that number of shares of Voting Common Stock and Non-Voting Common
Stock set forth in Exhibits B and C attached hereto;
WHEREAS, pursuant to the Merger Agreement, dated October 10, 1997 (the
"Merger Agreement"), by and between Vistar, Inc. and the Company, the Company
shall issue on the date hereof to Belron that number of shares of Voting Common
Stock and Non-Voting Common Stock set forth in Exhibit A attached hereto;
WHEREAS, pursuant to the Merger Agreement, the Company shall issue on
the date hereof to the Xxxxxxx Shareholders that number of shares of Non-Voting
Common Stock set forth in Exhibit A attached hereto;
WHEREAS, the Company, the TH Xxx Shareholders, the Management
Shareholders, Belron and the Xxxxxxx Shareholders desire to amend and restate
the Old Agreement and set forth more fully their agreements regarding certain
rights and restrictions with respect to the management of the Company and the
voting, transfer and sale 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:
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1. DEFINITIONS. The following terms will have the meaning for purposes of this
Agreement set forth below for such term.
"AAA RULES" has the meaning set forth in SECTION 21.
"ADDITIONAL SHARES" means (i) any shares of Common Stock, whether now
authorized or not, (ii) any rights, options or warrants to purchase any shares
of Common Stock, or to purchase securities that may become convertible into,
exercisable for or exchangeable for shares of Common Stock, and (iii) any
securities convertible into, exercisable for or exchangeable for shares of
Common Stock; provided, however, that Additional Shares shall not include (a)
securities offered by the Company pursuant to an underwritten public offering
registered pursuant to the Securities Act, (b) any shares of Common Stock or any
rights, options or warrants to purchase any shares of Common Stock, or to
purchase securities that may become convertible into, exercisable for or
exchangeable for shares of Common Stock, issued to officers or employees of the
Company after the date hereof pursuant to an employee incentive plan approved by
the Board, (c) securities issued as a dividend on, subdivision of or other
distribution in respect of all shares of Common Stock, (d) securities issued
upon conversion, exercise or exchange of any previously issued Additional
Shares, or (e) securities issued pursuant to the acquisition of another
corporation, limited liability company or partnership by the Company by merger,
purchase of substantially all of the assets of such other entity, or by other
reorganization whereby the Company ends up owning, directly or indirectly,
greater than fifty percent (50%) of the voting power of such entity or otherwise
controls such entity, provided such acquisition or reorganization has been
approved by the Board.
"AFFILIATE" of any Person means a Person controlling, under common
control with or controlled by such Person.
"ARBITRATORS" has the meaning set forth in SECTION 21.
"BELRON DIRECTORS" has the meaning set forth in SECTION 2(a)(ii)(A)(1).
"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 and in the United Kingdom, excluding Saturday, Sunday
or any day on which the banks located in New York City or London, England 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.
"CHAIRMAN" has the meaning set forth in SECTION 5.
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"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the Voting Common Stock and the Non-Voting Common
Stock.
"COMPETITOR" has the meaning set forth in SECTION 8(d).
"ELECTION PERIOD" has the meaning set forth in SECTION 8(c)(i)(B).
"EXECUTIVE OPERATING COMMITTEE CHAIRMAN" has the meaning set forth
SECTION 6.
"EXECUTIVE OPERATING COMMITTEE" has the meaning set forth in SECTION 6.
"FAMILY MEMBER" has the meaning set forth in SECTION 8(g)(ii)
"GAAP" means, with respect to Persons organized under the laws of the
United States, generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or any successor authority) as they
exist from time to time, consistently applied.
"INDEPENDENT THIRD PARTY" means any Person who does not own in excess
of 1% of the Company's capital stock on a fully-diluted basis (a "1% Owner"),
who is not controlling, controlled by or under common control with any such 1%
Owner and who is not the spouse or descendent (by birth or adoption) of any such
1% Owner or a trust for the benefit of such 1% Owner and/or such other Persons.
"IPO" means an initial public offering of the Company's capital stock
pursuant to the Securities Act.
"ISSUANCE DATE" has the meaning set forth in SECTION 9(b).
"ISSUANCE NOTICE" has the meaning set forth in SECTION 9(b).
"NON-VOTING COMMON STOCK" means the Class B Non-Voting Common Stock of
the Company, par value $0.01 per share.
"OFFER" has the meaning set forth in SECTION 9(a).
"OTHER SHAREHOLDERS" has the meaning set forth in SECTION 8(f)(ii).
"PERMITTED TRANSFER" has the meaning set forth in SECTION 8(g).
"PERMITTED TRANSFEREE" means any person or entity who shall have
acquired and who shall hold Shareholder Shares pursuant to a Permitted Transfer.
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"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.
"PRE-TRANSFER OFFER NOTICE" has the meaning set forth in SECTION
8(c)(i)(A).
"PRE-TRANSFER RE-OFFER NOTICE" has the meaning set forth in SECTION
8(c)(ii).
"PUBLIC SALE" means any sale of Shareholder Shares to the public
pursuant to an underwritten offering registered under the Securities Act or to
the public through a broker, dealer or market maker pursuant to a registration
statement effective under the Securities Act pursuant to Rule 415 or the
provisions of Rule 144 adopted under the Securities Act.
"RE-OFFER ELECTION PERIOD" has the meaning set forth in SECTION
8(c)(ii).
"RFR ELECTION PERIOD" has the meaning set forth in SECTION 8(d).
"RFR NOTICE" has the meaning set forth in SECTION 8(d).
"SALE NOTICE" has the meaning set forth in SECTION 8(e)(ii).
"SALE OF THE COMPANY NOTICE" has the meaning set forth in SECTION
8(f)(ii).
"SALE OF THE COMPANY" means the sale of the Company to an Independent
Third Party or group of Independent Third Parties pursuant to which such party
or parties acquire (i) capital stock of the Company possessing the voting power
under normal circumstances to elect a majority of the Company Board (whether by
merger, consolidation or sale or transfer of the Company's capital stock) or
(ii) all or substantially all of the Company's assets determined on a
consolidated basis.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHAREHOLDER SHARES" means (i) any Common Stock purchased or otherwise
acquired by any Shareholder, (ii) any capital stock or other equity securities
issued or issuable directly or indirectly with respect to the Common Stock
referred to in clause (i) above by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization, and (iii) any other shares of any class or series of
capital stock of the Company held by a Shareholder. As to any particular shares
constituting Shareholder Shares, such shares shall cease to be Shareholder
Shares when they have been (x) effectively registered under the Securities Act
and disposed of in accordance with the registration statement covering them or
(y) sold to the public through a broker, dealer or market maker pursuant to Rule
144 (or any similar provision then in force) under the Securities Act.
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"SUBSIDIARY" means any entity controlled by the Company, directly or
through one or more Subsidiaries.
"SUPPLIER" has the meaning set forth in SECTION 8(d).
"TAG-ALONG RIGHT" has the meaning set forth in SECTION 8(e)(i).
"TH XXX DIRECTORS" has the meaning set forth in SECTION 2(a)(ii)(A)(2).
"TRANSFER" has the meaning set forth in SECTION 8(a).
"TRANSFERRING SHAREHOLDER" has the meaning set forth in SECTION
8(c)(i)(A).
"TRIGGERING DAY" means the first day upon which the following three
conditions have been satisfied: (i) the consummation of an IPO; (ii) the
expiration of a three (3)-year period after the date of this Agreement; and
(iii) the Belron Shareholders beneficially own, in the aggregate, more shares of
Voting Common Stock than that beneficially owned, in the aggregate, by the TH
Xxx Shareholders and the Management Shareholders.
"VOTING COMMON STOCK" means the Class A Voting Common Stock of the
Company, par value $0.01 per share.
2. BOARD OF DIRECTORS.
(a) From and after the date hereof and until the provisions of this
Section 2 cease to be effective, each Shareholder shall vote all of its Voting
Common Stock and any other voting securities of the Company over which such
Shareholder has voting control and shall take all other reasonably necessary or
desirable actions within its control (whether in its capacity as a Shareholder,
director, member of a Board committee or officer of the Company or otherwise,
and including, without limitation, attendance at meetings in person or by proxy
for purposes of obtaining a quorum and execution of written consents in lieu of
meetings), and the Company shall take all reasonably necessary or desirable
actions within its control (including, without limitation, calling special Board
and Shareholder meetings), so that:
(i) until the Triggering Day, the authorized number of
directors on the Board shall be established at ten (10) directors;
(ii) the following individuals shall be elected to the Board:
(A) from and after the date hereof and until the
Triggering Day:
(1) five (5) representatives designated by
Belron (which designees initially shall be Xxxxxx
Xxxxxx, M. Xxxxx Xxxxxxxxxxx, Xxxx X. Xxxxx, Xxxxxx
X. Xxxxx and Xxxxxx Xxxxxx), determined by a vote of
the
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Belron Shareholders owning a majority of the
Shareholder Shares held by all Belron Shareholders
(the "Belron Directors"); and
(2) five (5) representatives designated by
TH Xxx (which designees initially shall be Xxxxx X.
Xxxxxxx, Xxxx X. Xxxxxx, Xxxxxxx X. XxXxxx, Xxxxx X.
Xxxxxxxx and Xxxx X. Xxxxx), determined by a vote of
the TH Xxx Shareholders and Management Shareholders
owning a majority of the Shareholder Shares held by
all TH Xxx Shareholders and Management Shareholders
(the "TH Xxx Directors").
(B) from and after the Triggering Day and until the
provisions of this Section 2 cease to be effective, Belron and
TH Xxx agree to vote all of their shares of Voting Common
Stock such that, to the extent possible, each of Belron and TH
Xxx shall be entitled to designate a minimum number of
directors corresponding to the respective percentage ownership
of the Belron Shareholders' or TH Xxx Shareholders' (but
excluding their Permitted Transferees who are not Affiliates
or Family Members) Voting Common Stock as related to their
respective percentage ownership of the Voting Common Stock on
the date hereof, as set forth below:
PERCENTAGE NUMBER OF
OWNERSHIP DIRECTORS
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50% or more 3
25% - 49.99% 2
5% - 24.99% 1
Notwithstanding the foregoing, (i) any Shareholder shall be
entitled to vote its shares of Voting Common Stock in the
election of directors as such Shareholder deems appropriate so
long as the requirements of this SECTION 2(a)(ii)(B) to elect
the minimum directors are satisfied; and (ii) Belron shall not
be required to vote its shares of Voting Common Stock in the
election of directors to nominate or elect TH Xxx Directors to
the extent that such action could reasonably be expected to
prevent Belron from electing a majority of the Board of
Directors unless such failure to elect a majority of the Board
of Directors is caused by a voting agreement entered into by
Belron or a reduction in the number of directors below seven
(7) caused by Belron.
(iii) so long as Xxxx X. Xxxxxx is Chief Executive Officer, he
shall be a director of the Company; and
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(iv) upon the vacancy from the Board of any representative
designated hereunder by Belron or TH Xxx, as the case may be, such
vacancy shall be filled by a representative designated by Belron or TH
Xxx, as appropriate.
(b) The Company shall pay the reasonable out-of-pocket expenses
incurred by each director in connection with attending the meetings of the Board
and any committee thereof. In addition, the Company shall maintain directors and
officers indemnity insurance coverage satisfactory to a majority of the
directors, and the Company's certificate of incorporation and bylaws shall
provide for indemnification and exculpation of directors to the fullest extent
permitted under applicable law.
(c) If any party fails to designate a representative to fill a
directorship pursuant to the terms of this SECTION 2, the individual previously
holding such directorship shall be elected to such position, or if such
individual fails or declines to serve, the election of an individual to such
directorship shall be accomplished in accordance with the Company's bylaws and
applicable law; provided that the Shareholders shall vote to remove such
individual if the party which failed to designate such directorship so directs.
(d) The provisions of this SECTION 2 shall terminate automatically and
be of no further force and effect upon the tenth anniversary of the date hereof.
After the Triggering Day, if either the Belron Shareholders or the TH Xxx
Shareholders (but excluding their Permitted Transferees who are not Affiliates
or Family Members), cease to hold 5% of the Voting Common Stock that such group
holds on the date hereof, such group's right to designate members of the Board
shall terminate.
3. REPRESENTATIONS AND WARRANTIES. Each Shareholder represents and warrants that
(i) such Shareholder is the record owner of the number of Shareholder Shares set
forth opposite its name on Exhibit A, Exhibit B or Exhibit C attached hereto,
(ii) this Agreement has been duly authorized, executed and delivered by such
Shareholder and constitutes the valid and binding obligation of such
Shareholder, enforceable in accordance with its terms, and (iii) such
Shareholder has not granted and is not a party to any proxy, voting trust or
other agreement which is inconsistent with, conflicts with or violates any
provision of this Agreement. No holder of Shareholder Shares shall grant any
proxy or become party to any voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this Agreement.
4. CHIEF EXECUTIVE OFFICER.
(a) The Company's initial Chief Executive Officer shall be Xxxx X.
Xxxxxx.
(b) In the event of any resignation, termination of, or inability to
serve as Chief Executive Officer by such person, until the Triggering Day,
Belron and TH Xxx shall each have the right to nominate the Chief Executive
Officer or Chief Executive Officers of the Company.
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(c) The Chief Executive Officer or Chief Executive Officers shall
perform such duties as may be assigned to such Chief Executive Officer or Chief
Executive Officers by the Board and such Chief Executive Officer or Chief
Executive Officers shall report to the Executive Operating Committee.
5. CHAIRMAN OF THE BOARD OF DIRECTORS. Until the date which is the earlier of
(i) eighteen (18) months after consummation of an IPO or (ii) the third
anniversary of the date hereof, the Shareholders agree that the Chairman of the
Board (the "Chairman") shall be Xxxxx X. Xxxxxxx. The Chairman shall perform
such duties as may be assigned to such Chairman by the Board, including, but not
limited to, presiding at all meetings of the Board.
6. EXECUTIVE OPERATING COMMITTEE. The Company shall have an Executive Operating
Committee (the "Executive Operating Committee") which shall be responsible for
monitoring and facilitating the implementation of the Company's budget,
post-Merger integration plan, purchasing policy and other matters delegated by
the Board. The Executive Operating Committee shall have a chairman (the
"Executive Operating Committee Chairman") who shall preside over all meetings of
the committee and have such other powers as delegated by the Board. Until the
third anniversary of the date hereof, the Shareholders agree that:
(a) the Executive Operating Committee shall consist of four (4)
directors designated as follows:
(i) two (2) members designated by the Belron Directors (one of
whom shall initially be Xxxx X. Xxxxx and the other of whom shall be
designated at a later date); in the event of any resignation, removal
of, or inability to serve on such committee, by any such designee, or
other vacancy in the position of committee member so designated by the
Belron Directors, such vacancy shall be filled by a successor designee
designated by the Belron Directors; and
(ii) two (2) members designated by the TH Xxx Directors (one
of whom shall initially Xxxx X. Xxxxxx and the other of whom shall be
designated at a later date); in the event of any resignation, removal
of, or inability to serve on such committee, by any such designee, or
other vacancy in the position of committee member so designated by the
TH Xxx Directors, such vacancy shall be filled by a successor designee
designated by the TH Xxx Directors;
(b) the Chairman of the Executive Operating Committee shall initially
be Xxxx X. Xxxxx; in the event of any resignation, removal of, or inability to
serve as such Chairman by Xx. Xxxxx, or other vacancy in the position of the
Executive Operating Committee Chairman, such vacancy shall be filled by a
successor designee designated by the Belron Directors, subject to the right of
TH Xxx to disapprove such Belron designee for good cause; and
(c) the Shareholders acknowledge the potential benefits for the Company
of Belron's worldwide purchasing influence and relationships and the Executive
Committee will recognize
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such influence and relationships in formulating and implementing the Company's
purchasing policy.
7. RESTRICTIONS ON PURCHASES. Notwithstanding anything in this Agreement to the
contrary, no Shareholder shall purchase shares of Voting Common Stock for a
period of three (3) years after the date hereof; provided that Transfers to
Permitted Transferees and exercise of vested options and of pre-emptive rights
under Section 9 hereof shall be permitted. After the expiration of the three
(3)-year period, each TH Xxx Shareholder shall give Belron ten (10) days' prior
written notice of its intention to purchase shares of Voting Common Stock and
the number of shares it intends to purchase.
8. RESTRICTIONS ON TRANSFER.
(a) RETENTION OF VOTING COMMON STOCK. Subject to the provisions of
SECTION 8(g), until the third anniversary of the date hereof, no Shareholder
shall sell, transfer, assign, pledge or otherwise dispose of (whether with or
without consideration and whether voluntarily or involuntarily or by operation
of law) any interest in such Person's Voting Common Stock (a "Transfer").
(b) RETENTION OF NON-VOTING COMMON STOCK. No Shareholder shall Transfer
any interest in the Non-Voting Common Stock or any Voting Common Stock for which
the restrictions in (a) above have expired, held by such Person on the date
hereof or hereafter unless such Transfer complies with the provisions of this
SECTION 8.
(c) FIRST OFFER RIGHT. In addition to compliance with the other
requirements of this SECTION 8 and subject to the provisions of SECTION 8(g),
Belron shall have the following rights of first offer with respect to transfers
by any of the TH Xxx Shareholders and any of the Management Shareholders of any
of the Shareholder Shares held by such Persons.
(i) INITIAL OFFER.
(A) Prior to making any Transfer of Shareholder
Shares, the transferring TH Xxx Shareholder or transferring Management
Shareholder, as applicable (in each case, the "Transferring Shareholder"), shall
deliver written notice by a method permitted by SECTION 12(c) (a "Pre-Transfer
Offer Notice") to each of the parties listed as to receive notice for Belron.
The Pre-Transfer Offer Notice shall disclose in reasonable detail the proposed
number of Shareholders Shares to be transferred, the proposed sales price and
other terms and conditions of the Transfer; provided that the Pre-Transfer Offer
Notice shall not be required to include the identity of the proposed
transferee(s).
(B) Belron may elect to purchase all (but not less
than all) of the Shareholder Shares specified in the Pre-Transfer Offer Notice
at the price and on the terms specified therein by delivering written notice to
the Transferring Shareholder by a method permitted by SECTION 12(d) of such
election to the Transferring Shareholder within twenty-four
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(24) hours (which must include one (1) full Business Day) after the delivery of
the Pre-Transfer Offer Notice (the "Election Period"). If Belron elects to
purchase all (but not less than all) of such Shareholder Shares within the
Election Period, the closing of any such transaction between Belron and the
Transferring Shareholder shall be within fourteen (14) calendar days after
expiration of the Election Period. If Belron has not elected to purchase all of
the Shareholder Shares within the Election Period, the Transferring Shareholder
may, within one hundred eighty (180)-days after the expiration of the Election
Period and subject to the provisions of Section 8(d), if applicable, transfer
such Shareholder Shares to one or more third parties at a price no less than
100% of the price per share specified in the Pre-Transfer Offer Notice and on
other terms no more favorable to the transferees thereof than offered to Belron
in the Pre-Transfer Offer Notice.
(ii) RE-OFFER. At any time within such one hundred eighty
(180)-day period provided in Section 8(c)(i)(B), above, the Transferring
Shareholder may re-offer the Shareholder Shares to be transferred to Belron at a
lower sales price than that specified in the Pre-Transfer Offer Notice by
delivering written notice by a method permitted by SECTION 12(c) (the
"Pre-Transfer Re-Offer Notice") by 9:00 a.m., London, England time, to each of
the parties listed as to receive written notice for Belron; provided, however,
that in the case of any proposed sale pursuant to an underwritten public
offering registered pursuant to the Securities Act, the Pre-Transfer Re-Offer
Notice shall be delivered by 9:00 a.m. Boston, Massachusetts time. The
Pre-Transfer Re-Offer Notice shall disclose in reasonable detail the proposed
number of Shareholder Shares to be transferred, the proposed sales price and
other terms and conditions of the Transfer; provided that the Pre-Transfer
Re-Offer Notice shall not be required to include the identity of the proposed
transferee(s). Belron may elect to purchase all (but not less than all) of the
Shareholder Shares to be transferred at the sales price specified in the
Pre-Transfer Re-Offer Notice by delivering written notice to the Transferring
Shareholder by a method permitted by SECTION 12(d) of such election to the
Transferring Shareholder by 5:00 p.m., London, England time, on the day such
Pre-Transfer Re-Offer Notice is received; provided, however, that in the case of
any sale pursuant to an underwritten public offering registered under the
Securities Act, such election period shall terminate at 4:00 p.m., Boston,
Massachusetts time on the day such Pre-Transfer Re-Offer Notice is received (in
either case, the "Re-Offer Election Period"). If Belron elects to purchase all
(but not less than all) of such Shareholder Shares within the Re-Offer Election
Period, the closing of any such transaction between Belron and the Transferring
Shareholder shall be within fourteen (14) calendar days after expiration of the
Re-Offer Election Period. If Belron has not elected to purchase all of the
Shareholder Shares within the Re-Offer Election Period, the Transferring
Shareholder may, within one hundred eighty (180) days after the expiration of
the Re-Offer Election Period and subject to the provisions of Section 8(d),
transfer such Shareholder Shares to one or more third parties at a price no less
than 100% of the price per share specified in the Pre-Transfer Re-Offer Notice.
(iii) Any Shareholder Shares subject to a Pre-Transfer Offer
Notice or a Pre-Transfer Re-Offer Notice not transferred within the applicable
one hundred eighty (180) day period shall be subject to SECTIONS 8(c)(i) AND
(ii) prior to any subsequent Transfer. The purchase price specified in any
Pre-Transfer Offer Notice or Pre-Transfer Re-Offer Notice shall be payable
solely in cash at the closing of the transaction. The closing of the transaction
between the
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Transferring Shareholder and one or more third parties with respect to any
Shareholder Shares covered by a Pre-Transfer Offer Notice or a Pre-Transfer
Re-Offer Notice shall be within fourteen (14) calendar days of the expiration of
the applicable one hundred eighty (180)-day period.
(iv) In the case of any proposed sale pursuant to an
underwritten public offering, the Transferring Shareholder shall deliver written
notice to Belron not less than forty-eight (48) hours (which must include one
(1) full Business Day) before entering into a an underwriting or purchase
agreement with respect to such underwritten public offering.
(d) RIGHT OF FIRST REFUSAL. In addition to compliance with the other
requirements of this SECTION 8 and subject to the provisions of SECTION 8(g), in
the event that any of the TH Xxx Shareholders or any of the Management
Shareholders have a bona fide offer from a third party to sell any Shareholder
Shares to any Person with respect to which such TH Xxx Shareholder(s) and/or
Management Shareholder(s), as the case may be, have actual knowledge, after
reasonable inquiry of such Person, that such Person is a Supplier or Competitor,
prior to making any such Transfer, such TH Xxx Shareholder(s) and/or Management
Shareholder(s), as the case may be, shall deliver written notice (the "RFR
Notice") to Belron. The RFR Notice shall disclose in reasonable detail the
identity of the prospective transferee(s), the number of shares to be
transferred and the terms and conditions of the transfer. Belron may elect to
purchase all (but not less than all) of such Shareholder Shares to be
transferred upon the same terms and conditions as those set forth in the RFR
Notice by delivering a written notice of such election to the transferring
Shareholder within ten (10) days after the RFR Notice has been delivered to
Belron ("RFR Election Period"). If Belron has not elected to purchase all of the
Shareholder Shares to be transferred within such RFR Election Period, the
transferring Shareholder may transfer the Shareholder Shares specified in the
RFR Notice at a price and on terms no more favorable to the transferee(s)
thereof than specified in the RFR Notice during the ninety (90)-day period
immediately following expiration of the RFR Election Period. Any Shareholder
Shares not transferred within such ninety (90)-day period shall be subject to
the provisions of this SECTION 8(d) upon subsequent transfer. If Belron has
elected to purchase Shareholder Shares hereunder, the transfer of such shares
shall be consummated as soon as practicable but in any event, within thirty (30)
calendar days, after the delivery of the election notice(s) to the transferring
Shareholder, on the terms and conditions set forth in the RFR Notice.
For purposes of this SECTION 8(d): "Supplier" shall mean (i) any Person
who manufactures automotive glass (including, but not limited to, those
manufacturers of automotive glass listed on Exhibit D attached hereto), (ii) any
Person who acts as a wholesaler of automotive glass, (iii) any Person who acts
as a distributor of automotive glass or (iv) any Affiliate of any Person set
forth in clause (i), (ii) or (iii); and "Competitor" shall mean any Person who
installs or repairs automotive glass or any Affiliate of any such Person.
The provisions of this SECTION 8(d) shall not apply to any Public Sale.
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(e) TAG ALONG RIGHTS.
(i) APPLICABILITY OF PROVISIONS. Notwithstanding anything in
this Agreement to the contrary, (A) the Xxxxxxx Shareholders and the
Belron Shareholders shall have no Tag-Along Right with respect to any
Transfer by any Shareholder, (B) the Management Shareholders shall have
Tag-Along Rights with respect to all Transfers by any Shareholder and
(C) the TH Xxx Shareholders shall have Tag-Along Rights only with
respect to Transfers by the Belron Shareholders.
(ii) TAG ALONG NOTICE. In addition to compliance with the
other requirements of this SECTION 8 and subject to the provisions of
SECTION 8(g), if any Shareholder shall propose to Transfer any
Shareholder Shares in a single transaction or series of related
transactions, such Shareholder shall have the obligation, and subject
to SECTION 8(e)(iv) hereof, each other Shareholder or other
Shareholders, as the case may be, shall have the right (the "Tag-Along
Right"), to require the proposed transferee of such Shareholder Shares
to purchase from such other Shareholder, at the same price per share
and upon the same terms and conditions as to be paid and given to the
transferring Shareholder, the number of Shareholder Shares equal to the
product obtained by multiplying (A) the number of Shareholder Shares
held by each such other Shareholder times, (B) the quotient derived by
dividing (1) the number of Shareholder Shares which otherwise would
have been sold by the transferring Shareholder by (2) the sum of the
total number of Shareholder Shares held by the transferring Shareholder
plus the total number of Shareholder Shares held by the other
Shareholders electing to participate in the sale; provided that in
order to be entitled to exercise its right to Transfer securities to
the proposed transferee pursuant to this SECTION 8(e), each other
Shareholder seeking to Transfer its Shareholder Shares must agree to
make substantially the same representations, warranties, covenants and
indemnities relating to title to such securities, and power and
authority to transfer such Shareholder Shares as the transferring
Shareholder agrees to make in connection with its proposed Transfer of
Shareholder Shares.
(iii) ELECTION. Upon receipt by a transferring Shareholder of a
bona fide offer to purchase its Shareholder Shares pursuant to SECTION
8(e)(i), the transferring Shareholder shall notify each other
Shareholder, in writing, of such offer and its terms and conditions,
which written notice shall include the number of Shareholder Shares the
transferring Shareholder desires to sell, the name of the purchasers
and the consideration offered in connection therewith (the "Sale
Notice"). Each other Shareholder may exercise its right to sell under
this SECTION 8(e) by giving written notice to the transferring
Shareholder within five (5) Business Days after the date on which such
other Shareholder received the Sale Notice from the transferring
Shareholder pursuant to this SECTION 8(e)(ii).
(iv) BEST EFFORTS. The transferring Shareholder shall use its
best efforts to obtain the agreement of the prospective transferee(s)
to the participation of other Shareholders in the contemplated transfer
and shall not transfer any Shareholder Shares
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to the prospective transferee(s) if such transferee(s) refuses to allow
the participation of the other Shareholders.
(v) TERMINATION. The provisions of this SECTION 8(e) shall
terminate upon the consummation of an IPO.
(f) DRAG ALONG RIGHTS.
(i) THIRD PARTY TRANSACTION. Belron, TH Xxx and the Board
shall collectively have the right to approve a Sale of the Company at
any time after the date hereof. In the event of such approval by each
of Belron, TH Xxx and the Board, each Shareholder shall vote for,
consent to and raise no objections to such Sale of the Company. If the
Sale of the Company is structured as a (i) merger or consolidation,
each holder of Shareholder Shares shall waive any dissenters rights,
appraisal rights or similar rights in connection with such merger or
consolidation or (ii) sale of stock, each Shareholder shall agree to
sell all of its Shareholder Shares and rights to acquire Shareholder
Shares on the terms and conditions approved by Belron, TH Xxx and the
Board. Each Shareholder shall take all necessary or desirable actions
in connection with the consummation of the Sale of the Company as
requested by Belron, TH Xxx and the Board.
(ii) ELECTION. Belron and TH Xxx shall deliver written notice
to the Company and the other Shareholders (the "Other Shareholders")
setting forth in reasonable detail the terms of the proposed Sale of
the Company at least ten (10) days prior to the consummation of the
Sale of the Company (the "Sale of the Company Notice"). Belron and TH
Xxx shall have one hundred eighty (180) days after the delivery of the
Sale of the Company Notice to consummate the Sale of the Company on the
terms specified in the Sale of the Company Notice. If the Sale of the
Company is not consummated within such one hundred eighty (180)-day
period, Belron and TH Xxx shall again comply with the provisions of
this SECTION 8(f).
(iii) CONDITIONS TO OBLIGATION. The obligations of the Other
Shareholders to participate in the Sale of the Company are subject to
the satisfaction of the conditions that, upon consummation of the Sale
of the Company, all holders of Common Stock shall receive the same form
and amount of consideration per share of Common Stock (including for
this purpose amounts allocated to noncompetition, consulting and other
arrangements), or if the holders of Common Stock are given an option as
to the form and consideration to be received, all holders shall be
given the same option.
(iv) TERMINATION. The provisions of this SECTION 8(f) shall
terminate upon the consummation of an IPO.
(g) PERMITTED TRANSFERS. The restrictions on Transfer set forth in this
SECTION 8 shall not apply with respect to any of the following (each, a
"Permitted Transfer"):
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(i) a Transfer of Shareholder Shares from the Xxxxxxx
Shareholders to Belron, another Xxxxxxx Shareholder, Xxxxxx Xxxxxxx or
a trust for the benefit of Xxxxxx Xxxxxxx;
(ii) a Transfer of Shareholder Shares by any Shareholder who
is a natural person, the Family Revocable Trust listed on Exhibit A or
Xxxxxx Xxxxxxx to such Shareholder's or Xxxxxx Xxxxxxx'x spouse,
children, grandchildren, parents or siblings, one or more trusts for
the benefit of any of such persons or a family limited partnership of
which such persons are the only partners (each, a "Family Member");
(iii) a bona fide pledge of Shareholder Shares by a
Shareholder to a bank or financial institution;
(iv) a Transfer of Shareholder Shares between any Shareholder
who is a natural person and such Shareholder's guardian or conservator;
(v) a bona fide gift of Shareholder Shares by a Shareholder to
a charitable institution as defined in Section 501(c) of the Internal
Revenue Code of 1986, as amended;
(vi) a Transfer of Shareholder Shares from any Shareholder
which is a partnership to its partners;
(vii) a Transfer of Shareholder Shares from any Shareholder
which is a corporation or partnership to any Affiliate of such
Shareholder or to any officer or director of such Shareholder; or
(viii) a Transfer of Shareholder Shares by a Belron
Shareholder or TH Xxx Shareholder to (A) any Affiliate of such
Shareholder, (B) another Belron Shareholder or TH Xxx Shareholder, as
appropriate, or (C) an employee of Belron or Xxxxxx X. Xxx Company, as
appropriate.
The restrictions contained in this SECTION 8 shall continue to be applicable to
the Shareholder Shares after any such Transfer and; provided, further, no
Permitted Transfer shall be effective unless and until the transferee of such
Shareholder Shares shall have executed and delivered to the Company an executed
counterpart of this Agreement in accordance with Section 28 hereof and;
provided, further that any Permitted Transfer shall require the prior written
consent of the Company, which consent shall not be unreasonably withheld or
delayed.
Notwithstanding the foregoing, no Shareholder shall avoid the
provisions of this Agreement by making one or more Permitted Transfers and then
disposing of all or any portion of such Shareholder's interest in the Permitted
Transferee.
(h) RESTRICTIVE LEGEND. Any certificate representing Shareholder Shares
will bear the following Legend:
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15
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THEY MAY
NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THAT ACT AS TO SAID SECURITIES OR AN
OPINION, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY
AND GIVEN BY COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AND
CERTAIN OTHER AGREEMENTS SET FORTH IN A Shareholders AGREEMENT BETWEEN
THE COMPANY AND THE ORIGINAL HOLDER DATED AS OF __________, 1997. A
COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE
COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(i) OPINION OF COUNSEL. No Shareholder may Transfer any Shareholder
Shares (except Transfers pursuant to an effective registration statement under
the Securities Act or pursuant to the laws of descent and distribution) without
first delivering to the Company an opinion of counsel in form and substance
reasonably satisfactory to the Company and given by counsel reasonably
satisfactory to the Company that (i) neither registration nor qualification
under the Securities Act and applicable state securities laws is required in
connection with such Transfer and (ii) subject to reasonable factual
qualifications and assumptions, such Transfer does not and will not contravene
or violate the terms of this Agreement.
(j) TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or attempted
Transfer of any Shareholder Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Shareholder Shares as the owner
of such Shareholder Shares for any purpose.
9. PRE-EMPTIVE RIGHTS.
(a) If the Company authorizes the issuance and sale of Additional
Shares, then, subject to SECTION 9(f) herein, the Company will offer to sell
(the "Offer") to each Shareholder, and each such Shareholder may elect to
purchase, up to that number of Additional Shares, such that following such
purchase, each such Shareholder is able to maintain the same percentage
ownership (on a fully-diluted basis) of Shareholder Shares which each such
Shareholder owned immediately prior to the offer of Additional Shares.
(b) The Company shall give written notice of the issuance of Additional
Shares (the "Issuance Notice"), which notice shall set forth the price and other
terms of such issuance, to each of the Shareholders at any time prior to the
issuance of such Additional Shares (the "Issuance Date"), or within ten (10)
days following the Issuance Date. Upon receipt of the Issuance Notice, any
Shareholder may accept the Offer by giving written notice to the Company within
ten (10)
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days following receipt of the Issuance Notice, which written notice shall
specify the number of Additional Shares which such Shareholder wishes to
purchase. Payment in the full amount of the price for the Additional Shares
shall be made by wire transfer of immediately available funds, to the account
designated by the Company in the Issuance Notice, on the day that is the later
to occur of (i) the closing date of the transaction pursuant to which such
Additional Shares are being issued and (ii) three (3) Business days after such
Shareholder gives the Company written notice of acceptance of the Offer.
(c) Each Shareholder will be entitled to purchase Additional Shares at
the same price and upon the same terms as Additional Shares being offered to the
other purchaser thereof; provided that, if such other persons is to pay for such
Additional Shares in whole or in part with consideration other than cash, then
the Board, in its good faith judgment, shall make a determination of the fair
market value of such consideration, and each Shareholder will be entitled to
purchase the Additional Shares for cash equal to the fair market value of the
aggregate cash and non-cash consideration each of them would otherwise pay
hereunder. Notwithstanding the foregoing, no Shareholder will be permitted to
exercise its rights under this SECTION 9 unless it agrees to purchase all shares
of Common Stock offered as a package or unit in the issuance of the Additional
Shares.
(d) The Company shall promptly deliver to each Shareholder purchasing
Additional Shares hereunder certificates evidencing such Additional Shares
purchased by such Shareholder, upon receipt of payment therefor, and upon
execution of such documents and instruments as shall govern the issuance of such
Additional Shares.
(e) The provisions of this Section 9 shall terminate upon consummation
of an IPO.
(f) Notwithstanding anything in this Agreement to the contrary, the
Xxxxxxx Shareholders shall not be entitled to any pre-emptive rights with
respect to the issuance of any securities of and by the Company.
10. RESTRICTIVE COVENANTS.
(a) BELRON AND TH XXX APPROVAL. Until the Triggering Day, neither the
Board nor any committee thereof will take or ratify, on behalf of the Company or
any Subsidiary, any of the following actions, without the prior written consent
of Belron and TH Xxx:
(i) MERGERS. Merger or consolidation of the Company or any of
its Subsidiaries with any Person, other than mergers with a
wholly-owned Subsidiary.
(ii) ASSET DISPOSITIONS. Sell, assign, transfer, lease or
otherwise dispose of all or substantially all of the consolidated
assets of the Company and its wholly-owned Subsidiaries (computed on
the basis of book value, determined in accordance with GAAP, or fair
market value as determined by the Board in its reasonable good faith
judgment) in
-16-
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any transaction or series of related transactions, other than the sale
or disposition of inventory in the ordinary course of business.
(iii) RELATED PARTY ARRANGEMENTS. Enter into, amend, modify or
supplement, or permit any Subsidiary to enter into amend, modify or
supplement, any agreement or other transaction with any of the
Company's or any of its Subsidiary's officers, directors, employees or
Affiliates of any of the foregoing on terms that are less favorable to
the Company or any of its Subsidiaries than could be obtained in an
arms length transaction.
(iv) ACQUISITIONS; JOINT VENTURES. Acquire, or permit any
Subsidiary to acquire, any interest in any Person, or enter into, or
permit any Subsidiary to enter into, any joint venture involving an
investment by the Company or any of its Subsidiaries in excess of $10
million.
(v) PERSONNEL. Hire or fire any Chief Executive Officer or
other executive officer of the Company listed on attached hereto.
(vi) BUDGET. Approval of annual operating plan, including
capital expenditure budget and annual operating budget, and any
substantial change to a previously approved operating plan or budget.
(vii) AMENDMENTS TO CERTIFICATE OF INCORPORATION AND BYLAWS.
Amend, modify, supplement or restate the Amended and Restated
Certificate of Incorporation of the Company or the Amended and Restated
Bylaws of the Company.
(b) DEADLOCK RELATED TO BUDGET. Until the Triggering Day, in the event
that Belron and TH Xxx shall fail to agree upon the annual budget for the next
year, the budget approved for the immediately preceding year shall remain in
effect until such time as Belron and TH Xxx shall agree upon the annual budget
for the next year; provided, that the Company may spend in that next year up to
110% of the prior year's aggregate budget, subject to a greater increase, in
each case, upon approval of the next annual budget by Belron and TH Xxx.
(c) FINANCINGS. Until the Triggering Day, neither the Board nor any
committee thereof will approve, recommend or ratify, on behalf of the Company or
any Subsidiary, any debt or equity financing transactions in which the Company
or any of its Subsidiaries is expected to receive net proceeds in excess of $25
million without the prior written approval of TH Xxx.
11. AGREEMENTS WITH RESPECT TO AN IPO; RIGHT TO CALL FOR AN IPO.
(a) RIGHT TO CALL FOR AN IPO.
(i) TH Xxx shall have the right to require the Company to
undertake an IPO at any time after the date of this Agreement, which
right shall be exclusive for thirty-six (36) months after the date
hereof.
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(ii) At any time after the first thirty-six (36) months after
the date hereof, Belron shall have the non-exclusive right to require
the Company to undertake an IPO.
(b) FURTHER ASSURANCES. In the event that an initial public offering of
the equity securities of the Company is approved pursuant to an effective
registration statement under the Securities Act, the Shareholders shall take all
necessary or desirable actions in connection with the consummation of the IPO.
In the event that such IPO is an underwritten offering and the managing
underwriters advise the Company in writing that, in their opinion, the equity
securities structure would adversely affect the marketability of the offering,
each holder shall consent to and vote for a recapitalization, reorganization
and/or exchange; provided that the resulting securities reflect and are
consistent with the rights and preferences set forth in the Company's
Certificate of Incorporation as in effect immediately prior to such IPO.
Notwithstanding the foregoing, in the case of an IPO called by TH Xxx pursuant
to Section 11(a)(i), the Shareholders shall not be required to take any action
which could reasonably be expected to have a material adverse tax or accounting
effect on the Company based on the reasonable determination of TH Xxx.
12. 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.
(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
-18-
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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
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 the Xxxxxxx Shareholders to:
Xxxxxx Xxxxxxx
0000 Xxxxx Xxxx Xxxxx Xxxxx
Xxx. 00-X
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
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and
Xxxxx X. Xxxxxx, Trustee
c/o Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(c) If to the Belron Shareholders:
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
-20-
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and
Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(d) 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
and:
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 of such
transmission, service is also made by personal delivery, mail or overnight
courier as permitted herein.
13. 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.
14. AMENDMENT AND WAIVER. Except as otherwise provided herein, the provisions of
this Agreement may be modified, amended or waived by the written agreement of
Belron (acting on behalf of the Belron Shareholders and on behalf of the Xxxxxxx
Shareholders), and TH Xxx (acting
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on behalf of the TH Xxx Shareholders and on behalf of the Management
Shareholders); provided, however, that no amendment may adversely affect the
Xxxxxxx Shareholders at any time, unless consented to in writing by a majority
in interest of such Xxxxxxx Shareholders; provided further that no amendment may
adversely affect the Management Shareholders at any time, unless consented to in
writing by a majority in interest of such Management Shareholders. The failure
of any party to enforce any of the provisions of this Agreement shall in no way
be construed as a waiver of such provisions and shall not affect the right of
such party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
15. 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 other.
16. 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.
17. INTERPRETATIVE MATTERS. Unless the context otherwise requires, (i) all
references to Articles, Sections, Schedules or Exhibits are to Articles,
Sections, Schedules or Exhibits in this Agreement; (ii) each accounting term not
otherwise defined in this Agreement has the meaning assigned to it in accordance
with GAAP; (iii) words in the singular or plural include the singular and plural
and pronouns stated in either the masculine, the feminine or neuter gender shall
include the masculine, feminine and neuter; (iv) the headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement; and (v) whenever the words
"include", "includes" or "including" are used in this Agreement they shall be
deemed to be followed by the words "but not limited to."
18. SUCCESSORS. Except as otherwise provided herein, this Agreement shall bind
and inure to the benefit of and be enforceable by the parties and their
successors and assigns.
19. 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.
20. DOCUMENTS. Each party will execute all documents and take such other actions
as any other party may reasonably request in order to consummate the
transactions provided for herein and to accomplish the purposes of this
Agreement.
21. 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
-22-
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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 provided in SECTION 22 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 pay its own expenses and fees,
except that administrative expenses (including the Arbitrators' fee) shall be
divided equally between the parties to the arbitration.
22. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH OF THE PARTIES HERETO
HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN
THE STATE OF NEW YORK AND IRREVOCABLY AGREE 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 AGREE TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS AGREEMENT. THE BELRON SHAREHOLDERS HEREBY
DESIGNATE AND APPOINT CT CORPORATION SYSTEM AT 000 X. XXXXXXX XXXXXX, XXXXXXX,
XXXXXXXX 00000 AND SUCH OTHER PERSONS AS MAY HEREINAFTER BE SELECTED BY THE
BELRON SHAREHOLDERS, WHICH PERSONS SHALL IRREVOCABLY AGREE IN WRITING TO SO
SERVE AS AGENT TO RECEIVE ON THE BELRON SHAREHOLDERS' BEHALF SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY
ACKNOWLEDGED BY THE BELRON SHAREHOLDERS TO BE EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT. A COPY OF ANY SUCH PROCESS SO SERVED SHALL BE MAILED BY
REGISTERED MAIL TO THE BELRON SHAREHOLDERS 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 THE
BELRON SHAREHOLDERS REFUSES TO ACCEPT SERVICE, THEN THE BELRON SHAREHOLDERS
HEREBY AGREE THAT SERVICE UPON THEM BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY OTHER PARTY HERETO TO SERVE
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24
PROCESS ON THE BELRON SHAREHOLDERS IN ANY OTHER MANNER PERMITTED BY LAW.
23. 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 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.
24. 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.
Notwithstanding the foregoing, the Company and the Shareholders agree that this
Agreement supersedes and replaces the Old Agreement and that the Old Agreement
is no longer binding on any party thereto.
25. 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 21,
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 and/or specific performance,
then the other parties hereby waive arbitration thereof under SECTION 21 for
such action solely as it relates to injunctive relief and/or specific
-24-
25
performance and shall not assert in any such action or proceeding the claim or
defense that any matter of injunctive relief an/or specific performance is to be
submitted to arbitration under SECTION 21. The foregoing remedy is in addition
to any and all other remedies which a party may have.
26. 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.
27. 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.
28. ADDITIONAL SHAREHOLDERS. Any person or entity who is not at the time a
Shareholder acquiring Shareholder Shares (except for transferees acquiring
Shareholder Shares in a Public Sale), shall, on or before the Transfer or
issuance of it of Shareholder Shares, sign a counterpart signature page hereto
in form reasonably satisfactory to the Company and shall thereby become a party
to this Agreement to be bound hereunder as (i) a Management Shareholder if a
Permitted Transferee thereof or an employee of the Company or any of its
Subsidiaries, (ii) a TH Xxx Shareholder if a Permitted Transferee thereof or an
employee or Affiliate of Xxxxxx X. Xxx Company, (iii) a Belron Shareholder if a
Permitted Transferee thereof or (iv) a Xxxxxxx Shareholder if a Permitted
Transferee thereof; provided, that a transferee which is a Permitted Transferee
under clause (iii) of the definition of Permitted Transfer shall not be
obligated to so agree until foreclosure on its pledge.
29. 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, except in the event of any willful breach of this
Agreement established by clear and convincing evidence. 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.
- 25 -
26
IN WITNESS WHEREOF, parties hereto have caused this Shareholders
Agreement to be signed as of the date first written above.
SAFELITE GLASS CORP.:
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
BELRON (USA) BV:
By:
-----------------------------------
Name:
Title:
XXXXXXX SHAREHOLDERS:
FAMILY REVOCABLE TRUST
By:
-----------------------------------
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 U/A/D 11/8/95
27
IN WITNESS WHEREOF, parties hereto have caused this Shareholders
Agreement to be signed as of the date first written above.
SAFELITE GLASS CORP.:
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
BELRON (USA) BV:
By: /s/ X.X. Xxxxxxxxxxx
-----------------------------------
Name: X.X. Xxxxxxxxxxx
Title: Director
XXXXXXX SHAREHOLDERS:
FAMILY REVOCABLE TRUST
By:
-----------------------------------
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 U/A/D 11/8/95
XXXXXX XXXXXXX 1995 GIFT TRUST FOR THE
FAMILY OF XXXXX U/A/D 11/8/95
By:
-----------------------------------
28
IN WITNESS WHEREOF, parties hereto have caused this Shareholders
Agreement to be signed as of the date first written above.
SAFELITE GLASS CORP.:
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
BELRON (USA) BV:
By:
-----------------------------------
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 U/A/D 11/8/95
29
XXXXXX XXXXXXX 1995 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 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:
-----------------------------------
XXXXXX X. XXX FOREIGN FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, General Partner
By: THL Equity Trust, General Partner
By:
-----------------------------------
30
XXXXXX XXXXXXX 1995 GIFT TRUST FOR THE
FAMILY OF XXXXX U/A/D 11/8/95
By:
-----------------------------------
Xxxxx X. Xxxxxx, not individually
but solely as trustee of each of
the above seven trusts
By:
-----------------------------------
Xxxxxxx Xxxxxx, not individually
but solely as trustee of each of
the above seven trusts
By:
-----------------------------------
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
31
THL-CCI INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
general partner
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx
BIG BEND INVESTMENTS, L.P.
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
MAJORITY IN INTEREST OF THE MANAGEMENT
SHAREHOLDERS:
----------------------------------------
Xxxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxx
----------------------------------------
Xxx X. Xxxxxxx
32
THL-CCI INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
general partner
By:
-----------------------------------
BIG BEND INVESTMENTS, L.P.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
MAJORITY IN INTEREST OF THE MANAGEMENT
SHAREHOLDERS:
----------------------------------------
Xxxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxx
----------------------------------------
Xxx X. Xxxxxxx
33
THL-CCI INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
general partner
By:
-----------------------------------
BIG BEND INVESTMENTS, L.P.
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
MAJORITY IN INTEREST OF THE MANAGEMENT
SHAREHOLDERS:
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxx
----------------------------------------
Xxx X. Xxxxxxx
34
THL-CCI INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
general partner
By:
-----------------------------------
BIG BEND INVESTMENTS, L.P.
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
MAJORITY IN INTEREST OF THE MANAGEMENT
SHAREHOLDERS:
----------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxx
----------------------------------------
Xxx X. Xxxxxxx
35
THL-CCI INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
general partner
By:
-----------------------------------
BIG BEND INVESTMENTS, L.P.
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
MAJORITY IN INTEREST OF THE MANAGEMENT
SHAREHOLDERS:
----------------------------------------
Xxxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxx
----------------------------------------
Xxx X. Xxxxxxx
36
THL-CCI INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
general partner
By:
-----------------------------------
BIG BEND INVESTMENTS, L.P.
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
MAJORITY IN INTEREST OF THE MANAGEMENT
SHAREHOLDERS:
----------------------------------------
Xxxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxx
----------------------------------------
Xxx X. Xxxxxxx
37
THL-CCI INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
general partner
By:
-----------------------------------
BIG BEND INVESTMENTS, L.P.
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
MAJORITY IN INTEREST OF THE MANAGEMENT
SHAREHOLDERS:
----------------------------------------
Xxxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxx
----------------------------------------
Xxx X. Xxxxxxx
38
THL-CCI INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
general partner
By:
-----------------------------------
BIG BEND INVESTMENTS, L.P.
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
MAJORITY IN INTEREST OF THE MANAGEMENT
SHAREHOLDERS:
----------------------------------------
Xxxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
----------------------------------------
Xxx X. Xxxxxxx
39
THL-CCI INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
general partner
By:
-----------------------------------
BIG BEND INVESTMENTS, L.P.
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
MAJORITY IN INTEREST OF THE MANAGEMENT
SHAREHOLDERS:
----------------------------------------
Xxxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxx
/s/ Xxx X. Xxxxxxx
----------------------------------------
Xxx X. Xxxxxxx
40
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxx X. X'Xxxx
----------------------------------------
Print Name: Xxxxx X. X'Xxxx
----------------------------
Address: 0000 Xxxxxxx Xxxx
----------------------------
Xxxxxxxxx Xxxxxxx, XX 00000
----------------------------
41
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxx X. Xxxxxxx
---------------------------------------
Print Name: Xxxxx Xxxxxxx
----------------------------
Address: 0000 Xxxx Xxxxxx Xxxx
----------------------------
Xxxxx Xxxxxx, XX 00000
----------------------------
42
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxxxxxx X. Xxxxxxx
---------------------------------------
Print Name: Xxxxxxxxx X. Xxxxxxx
----------------------------
Address: 0000 Xxxxxxxxx Xx.
----------------------------
Xxxxxx, XX 00000
----------------------------
43
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxx X. Xxxx
---------------------------------------
Print Name: Xxxxx X. Xxxx
----------------------------
Address: 2232 Ave. 13070 So.
----------------------------
Xxxxxxxx, XX 00000
----------------------------
44
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Print Name: Xxxxxx X. Xxxxxx
----------------------------
Address: 000 Xxxxxx Xxxxx Xx.
----------------------------
Xxxxxx, XX 00000
----------------------------
45
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ August X. Xxxxxxx
---------------------------------------
Print Name: August X. Xxxxxxx
----------------------------
Address: 0000 X. Xxxxxxxxxx
----------------------------
Xxxxxxxx, XX 00000
----------------------------
46
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxx X. Xxxxxx
---------------------------------------
Print Name: Xxxx X. Xxxxxx
----------------------------
Address: 24 Xxxxxxxx Dr.
----------------------------
Xxxxxxxx, XX 00000
----------------------------
47
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Print Name: Xxxxxx X. Xxxxxxx
----------------------------
Address: 00 Xxxxxxx Xxxx
----------------------------
Xxxxxx, XX 00000
----------------------------
48
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Print Name: Xxxxxx X. Xxxxxxx
----------------------------
Address: 0000 Xxxxxxxxxx Xx.
----------------------------
Xxxxx Xxxxx, XX 00000
----------------------------
49
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxx X. Xxxxxxx
---------------------------------------
Print Name: Xxxxx X. Xxxxxxx
----------------------------
Address: 0000 Xxxx Xx.
----------------------------
Xxxxxx, XX 00000
----------------------------
50
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxxxx Von Fenstermalher
---------------------------------------
Print Name: Xxxxxxx Von Fenstermalher
----------------------------
Address: 0000 Xxxxxx Xxxxx
----------------------------
Xxxxxxxx, Xxxx 00000
----------------------------
51
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
----------------------------
Address: 0000 Xxxxxxxxxxx Xx.
----------------------------
Xxxxxxxxxxx, XX 00000
----------------------------
52
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Print Name: Xxxxxx X. Xxxxxx
----------------------------
Address: 7681 Seminary Ridge
----------------------------
Xxxxxxxx, Xxxx 00000
----------------------------
53
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxx X. Crystal
---------------------------------------
Print Name: Xxxxx X. Xxxxxxx
----------------------------
Address: 00 Xxxxx Xxxxxx
----------------------------
Xxx Xxxx, XX 00000
----------------------------
54
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Alleri X. XXxxx
---------------------------------------
Print Name: Alleri X. XXxxx
----------------------------
Address: 000 X. Xxxxxx Xxx.
----------------------------
Xxxxxxxx, XX 00000
----------------------------
55
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Print Name: Xxxxxx X. Xxxxxxx
----------------------------
Address: 0000 Xxxxxxx Xx.
----------------------------
Xxxxxx, Xxxx 00000
----------------------------
56
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxx Xxxxxxx
---------------------------------------
Print Name: Xxxxx Xxxxxxx
----------------------------
Address: 00 Xxxxx Xxxxxxx Xx.
----------------------------
XXX, Xxxx 00000
----------------------------
57
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxx Xxxxxxx
---------------------------------------
Print Name: Xxxx Xxxxxxx
----------------------------
Address: 00 Xxxxxxx Xxxx
----------------------------
Xxxxxxxxxx, XX 00000
----------------------------
58
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Print Name: Xxxx X. Xxxxxxxxx
----------------------------
Address: 000 Xxxxxxxx Xx.
----------------------------
Xxxxxxxxx, XX 00000
----------------------------
59
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
12/31/97
/s/ M. Xxxxx Xxxxx
---------------------------------------
Print Name: M. Xxxxx Xxxxx
----------------------------
Address: 0000 Xxxxxxxxx Xx. X.
----------------------------
Xxxxxx, XX 00000
----------------------------
60
SAFELITE GLASS CORP.
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under SEAL as of the date first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxx Xxxxxxx
---------------------------------------
Print Name: Xxxx Xxxxxxx
----------------------------
Address: 000 Xxxx Xxxxxx Xx.
----------------------------
Xxxxxxx, XX 00000
----------------------------
12.31.97
61
EXHIBIT A
XXXXXXX SHAREHOLDERS
NON-VOTING
TRUST TRUSTEE(S) COMMON STOCK
----- ---------- ------------
Family Revocable Trust Xxxxxx Xxxxxxx 2,225,096
J-K Gift Trust Xxxxx X. Xxxxxx
U/A/D 12/16/91 Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx 137,881
Xxxxxx Xxxxxxx 1995 Xxxxx X. Xxxxxx
Descendants Trust for the Family of Xxxx Xxxxxxx Xxxxxx
U/A/D 11/8/95 Xxxxxx Xxxxxxxxx 13,716
Xxxxxx Xxxxxxx 1995 Xxxxx X. Xxxxxx
Descendants Trust for the Family of Xxxxxxx Xxxxxxx Xxxxxx
U/A/D 11/8/95 Xxxxxx Xxxxxxxxx 13,716
Xxxxxx Xxxxxxx 1995 Xxxxx X. Xxxxxx
Descendants Trust for the Family of Xxxxx Xxxxxxx Xxxxxx
U/A/D 11/8/95 Xxxxxx Xxxxxxxxx 13,716
Xxxxxx Xxxxxxx 1995 Gift Xxxxx X. Xxxxxx
Trust for the Family of Xxxx Xxxxxxx Xxxxxx
U/A/D 11/8/95 Xxxxxx Xxxxxxxxx 22,841
Xxxxxx Xxxxxxx 1995 Gift Xxxxx X. Xxxxxx
Trust for the Family of Xxxxxxx Xxxxxxx Xxxxxx
U/A/D 11/8/95 Xxxxxx Xxxxxxxxx 22,841
Xxxxxx Xxxxxxx 1995 Gift Xxxxx X. Xxxxxx
Trust for the Family of Xxxxx Xxxxxxx Xxxxxx
U/A/D 11/8/95 Xxxxxx Xxxxxxxxx 22,841
Total 2,472,648
BELRON OWNERSHIP
VOTING
COMMON NON-VOTING
NAME STOCK COMMON STOCK TOTAL
---- ----- ------------ -----
Belron 1,690,101 4,487,123 6,177,224
62
EXHIBIT B
TH XXX SHAREHOLDERS
VOTING
COMMON NON-VOTING
NAME STOCK COMMON STOCK TOTAL
---- ----- ------------ -----
Xxxxxx X. Xxx Equity Fund III, L.P. 1,241,479.33 2,482,958.67 3,724,438
Xxxxxx X. Xxx Foreign Fund III, L.P. 76,819.00 153,638.00 230,457
THL-CCI Investors Limited Partnership 128,781.67 257,563.33 386,345
Big Bend Investments, L.P. 12,483.00 24,966.00 37,449
63
EXHIBIT C
MANAGEMENT SHAREHOLDERS
VOTING NON-VOTING
NAME COMMON COMMON
STOCK STOCK TOTAL
---- ----- ----- -----
Xxxxx X. Xxxxxxx 18,025.33 36,050.67 54,076.00
Xxxx X. Xxxxxx 61,014.67 122,029.33 183,044.00
Xxxxxxx X. Xxxxxx 21,648.67 43,297.33 64,946.00
Xxxxxxxxx X. Xxxxxxx 11,992.67 23,985.33 35,978.00
Xxxxxxx X. Xxxxx 11,992.67 23,985.33 35,978.00
Xxx X. Xxxxxxx 6,505.33 13,010.67 19,516.00
Xxxxx X. Xxxx 11,992.67 23,985.33 35,978.00
Xxxxxx Xxxxxx 11,992.67 23,985.33 35,978.00
Xxxxx X. Crystal 3,650.00 7,300.00 10,950.00
Xxxxxxxxx X. Xxxxxxx 730.00 1,460.00 2,190.00
Xxxxx X. Xxxx 730.00 1,460.00 2,190.00
Xxxxxx X. Xxxxxx 730.00 1,460.00 2,190.00
August X. Xxxxxxx 730.00 1,460.00 2,190.00
Xxxxx X. Xxxxx 730.00 1,460.00 2,190.00
Xxxx X. Xxxxxx 1,095.00 2,190.00 3,285.00
Xxxxx X. Xxxxxxx 183.33 366.67 550.00
Xxxxxx X. Xxxxxxx 100.00 200.00 300.00
Xxxxx X. Xxxxxxx 365.00 730.00 1,095.00
Xxxxxxx X. Xxxxxxxxxxxxx 250.00 500.00 750.00
Xxxxxxx X. Xxxxxxx 250.00 500.00 750.00
Xxxxx X. X'Xxxx 250.00 500.00 750.00
Xxxxxx X. Xxxxxxx 365.00 730.00 1,095.00
Xxxxx X. Xxxxxx 200.00 400.00 600.00
Xxxxxx X. Xxxxx 2,919.33 5,838.67 8,758.00
Xxxx X. Xxxxxxxxx 730.00 1,460.00 2,190.00
Xxxxx X. Xxxxxxxx 1,460.00 2,920.00 4,380.00
Xxxxxxx Xxxx 1,460.00 2,920.00 4,380.00
Xxxxxx X. Xxxxx 2,919.33 5,838.67 8,758.00
64
VOTING NON-VOTING
NAME COMMON COMMON
STOCK STOCK TOTAL
---- ----- ----- -----
Xxxxxxxx X. Xxxxxxxx 1,460.00 2,920.00 4,380.00
Xxxxxxx X. Xxxxxxx 730.00 1,460.00 2,190.00
M. Xxxxx Xxxxx 1,460.00 2,920.00 4,380.00
Xxxx X. Xxxxxxxxxx 1,460.00 2,920.00 4,380.00
Xxxx Xxxxxxx 1,460.00 2,920.00 4,380.00
Xxxxxx X. Xxxxxxxx 7,300.67 14,601.33 21,902.00
Xxxxx X. Xxxxxxx 730.00 1,460.00 2,190.00
Xxxxx X. Xxxxxxxx 1,460.00 2,920.00 4,380.00
Xxxxxxx X. Xxxx 730.00 1,460.00 2,190.00
Xxxx Xxxxxxx 730.00 1,460.00 2,190.00
Xxxxxxx X. Xxxxxx 730.00 1,460.00 2,190.00
Xxxx X. Xxxxxx 2,919.33 5,838.67 8,758.00
Xxxxx X. Xxxxxxxxxx 1,460.00 2,920.00 4,380.00
Xxxxx X. Xxxx 730.00 1,460.00 2,190.00
Xxxxx X. Xxxxxx, Trustee for the Xxxxxxx 5,543.33 11,086.67 16,630.00
Xxxxxx Xxxxxx Irrevocable Trust
Xxxxx X. Xxxxxx, Trustee for the Xxxxx 5,543.33 11,086.67 16,630.00
Xxxxxxxx Xxxxxx Irrevocable Trust
Xxxxxx X. Xxxxxxx 292.00 584.00 876.00
Garen and Xxxxxxxx Xxxxxxx 0000 54,076.00 108,152.00 162,228.00
Charitable Remainder Unitrust
Xxxxxxx X. Xxxxxxxxxxxx 730.00 1,460.00 2,190.00
65
EXHIBIT D
MANUFACTURERS
1. Apogee Enterprises
2. PPG Industries
3. Saint Gobain
4. Asahi Glass
5. Guardian Glass
6. Xxxxxxxxxx Glass
7. Amilite
8. Carlite
66
EXHIBIT E
EXECUTIVE OFFICERS
1. Senior Vice President - Marketing and Strategic Planning
2. Senior Vice President - Information Services
3. Senior Vice President - Manufacturing Distribution and Purchasing
4. Senior Vice President - Wholesale Sales
5. Senior Vice President - Client Sales and Support
6. Senior Vice President - Chief Financial Officer and Treasurer
7. Vice President - Finance and Corporate Controller
8. Vice President - Network Operations
9. Vice-President Retail Store Operations, East
10. Vice President Retail Store Operations, West
11. Vice President Store Development and Real Estate
12. Vice-President Human Resources
13. Vice President, Secretary and General Counsel
