EXHIBIT 3
SHARE OWNERSHIP AGREEMENT
DATED AS OF JUNE 30, 2003
1. Registration Rights........................................................................................1
1.1 Definitions.......................................................................................1
1.2 Limitation on Transfer............................................................................2
1.3 Restrictive Legend................................................................................3
1.4 Company Registration..............................................................................4
1.5 Form S-3 Registration.............................................................................5
1.6 Obligations of Company............................................................................5
1.7 Information from ▇▇▇▇.............................................................................7
1.8 Expenses of Registration..........................................................................7
1.9 Delay of Registration.............................................................................7
1.10 Indemnification...................................................................................8
1.11 Reports Under the Exchange Act...................................................................10
1.12 Termination of Registration Rights...............................................................10
1.13 Determination of Availability of Rule 144(k) of the Securities Act...............................11
2. Miscellaneous.............................................................................................11
2.1 No Implied Restrictions..........................................................................11
2.2 Purchase Price Adjustment........................................................................11
2.3 Successors and Assigns...........................................................................11
2.4 Third Party Beneficiaries........................................................................11
2.5 Counterparts.....................................................................................12
2.6 Captions; References.............................................................................12
2.7 Notices..........................................................................................12
2.8 Amendments and Waivers...........................................................................13
2.9 Severability.....................................................................................13
2.10 Governing Law....................................................................................13
2.11 Submission to Jurisdiction.......................................................................13
2.12 Further Assurances...............................................................................14
2.13 Complete Agreement...............................................................................14
2.14 Construction.....................................................................................14
2.15 Expenses.........................................................................................14
EXECUTION COPY
SHARE OWNERSHIP AGREEMENT
This SHARE OWNERSHIP AGREEMENT (this "Agreement") is entered into as of
June 30, 2003 by and between Standard Motor Products, Inc., a New York
corporation ("Company") and ▇▇▇▇ Corporation, a Virginia corporation ("▇▇▇▇").
A. ▇▇▇▇, certain of its Affiliates (including ▇▇▇▇
Corporation) and Company are parties to that certain Asset Purchase Agreement,
dated as of the date hereof (the "Purchase Agreement"), pursuant to which ▇▇▇▇
and the other Sellers (as defined in the Purchase Agreement) have agreed to sell
and Company has agreed to purchase substantially all of the assets, properties,
rights and interests relating to the EMG Business (as defined in the Purchase
Agreement), as further provided in the Purchase Agreement;
B. As part of the consideration under the Purchase Agreement,
Company is issuing to ▇▇▇▇ 1,378,760 shares of common stock, par value $2.00 per
share, of Company (including any such shares received by ▇▇▇▇ as a result of a
Recapitalization or pursuant to Section 3.3(g) of the Purchase Agreement, the
"Common Shares").
C. The obligations of Company and Sellers under the Purchase
Agreement are conditioned, among other things, upon the execution and delivery
of this Agreement by ▇▇▇▇ and Company.
NOW, THEREFORE, in consideration of the mutual premises and
covenants contained in this Agreement and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. REGISTRATION RIGHTS
1.1 DEFINITIONS
For purposes of this Agreement the following terms have the
meanings set forth below (capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Purchase Agreement):
"Change in Control Transaction" means any business
combination, merger or tender offer in which any portion of the Common Shares
are or are proposed to be purchased or redeemed by any Person (including
Company).
"Common Shares" has the meaning set forth in the second
recital.
"Company" has the meaning set forth in the preamble.
"▇▇▇▇" has the meaning set forth in the preamble.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Form S-3" means such form under the Securities Act as in
effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC that permits inclusion or incorporation of
substantial information by reference to other documents filed with the SEC and
that is appropriate for the registration of the Registrable Securities for
resale.
"Indemnified Person" has the meaning set forth in Section
1.10(a).
"Lock-Up Period" has the meaning set forth in Section 1.2(a).
"Losses" has the meaning set forth in Section 1.10(a).
"Piggyback Registration Period" means the last fifteen (15)
months of the Lock-Up Period.
"Purchase Agreement" has the meaning set forth in the first
recital.
"Recapitalizations" means share splits, subdivisions, share
dividends, combinations, recapitalizations and the like.
"register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document by the SEC.
"Registrable Securities" shall mean the Common Shares;
provided that the Common Shares shall cease to be Registrable Securities (i)
when a registration statement with respect to such Common Shares has been
declared effective under the Securities Act and such Common Shares have been
exchanged or disposed of pursuant to such registration statement, (ii) when such
Common Shares are available for resale pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act or (iii) when such Common
Shares cease to be outstanding.
"Rule 144(k) Negative Determination" has the meaning set forth
in Section 1.13.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Transfer" and "Transferred" each has the meaning set forth in
Section 1.2(a).
"Violation" has the meaning set forth in Section 1.10(a).
1.2 LIMITATION ON TRANSFER
(a) During the period commencing on date hereof and ending two
years and six months after the date hereof (the "Lock-Up Period"), ▇▇▇▇ agrees,
with respect to the Common Shares, not to (i) offer, sell, assign, transfer,
agree to sell, assign or transfer, sell
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any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, assign, pledge, hypothecate or
otherwise transfer or dispose of (including the deposit of any such Common
Shares into a voting trust or similar arrangement), directly or indirectly, any
of such Common Shares or any securities exercisable or exchangeable therefor, or
any interest therein or (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
owning any of such Common Shares, whether any such transaction described in
clause (i) or (ii) of this sentence is to be settled by delivery of such Common
Shares or other securities, in cash or otherwise (any transactions described in
such clauses (i) and (ii) being referred to herein as a "Transfer"), subject to
the provisions and upon the conditions specified in this Agreement; provided,
however, that during the Lock-Up Period ▇▇▇▇ ▇▇▇ participate in a Transfer in
connection with a Change in Control Transaction.
(b) Notwithstanding anything herein to the contrary, ▇▇▇▇ ▇▇▇
Transfer Common Shares to its Affiliates or to Company or its Affiliates.
(c) Company shall not be required to (i) transfer on its books
any Common Shares that shall have been transferred in violation of any of the
provisions set forth in this Agreement or (ii) treat as owner of such Common
Shares, or to accord the right to vote or to pay dividends to, any transferee to
whom such Common Shares shall have been so transferred.
Company shall be entitled to provide stop transfer
instructions to the transfer agents of the Common Shares that are consistent
with the terms of this Agreement. In the event any of the Common Shares are
Transferred in compliance with this Agreement in a manner which under the terms
of this Agreement does not require such third party to agree in writing to be
bound by the provisions of this Agreement, then Company shall issue a new
certificate representing such Common Shares without such legend or make the
appropriate electronic notation that such legend is removed and remove such stop
transfer instructions with respect thereto.
(d) Notwithstanding anything herein to the contrary, ▇▇▇▇
hereby agrees that it will not Transfer any of the Common Shares except in
compliance with applicable securities laws.
1.3 RESTRICTIVE LEGEND
(a) All certificates representing the Common Shares shall bear
the following legend, in addition to any other legends that are necessary to
comply with applicable Law:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES OR BLUE SKY LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT (1) PURSUANT TO A REGISTRATION
STATEMENT WITH RESPECT TO SUCH
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SECURITIES THAT IS EFFECTIVE UNDER THE ACT OR (2) PURSUANT TO AN AVAILABLE
EXEMPTION FROM REGISTRATION UNDER THE ACT RELATING TO THE DISPOSITION OF
SUCH SECURITIES, ACCOMPANIED BY A WRITTEN OPINION DELIVERED TO AND
SATISFACTORY TO STANDARD MOTOR PRODUCTS, INC. (THE "COMPANY") IN FORM AND
SUBSTANCE FROM COUNSEL SATISFACTORY TO THE COMPANY BY REASON OF EXPERIENCE
TO THE EFFECT THAT THE HOLDER MAY TRANSFER SUCH SECURITIES AS DESIRED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT AND (3) IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES AND BLUE SKY LAWS.
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE
PROVISIONS OF A SHARE OWNERSHIP AGREEMENT DATED AS OF JUNE 30, 2003 BY AND
BETWEEN ▇▇▇▇ CORPORATION AND THE COMPANY, WHICH CONTAINS CERTAIN
RESTRICTIONS ON TRANSFERABILITY OF THE SECURITIES REPRESENTED HEREBY.
1.4 COMPANY REGISTRATION
(a) During the Piggyback Registration Period, if Company
proposes to register (including for this purpose a registration effected by
Company for shareholders other than ▇▇▇▇) any of its shares or other securities
under the Securities Act in connection with the public offering of such
securities (other than a registration relating solely to the sale of securities
to participants in a Company stock plan, a registration relating to a corporate
reorganization or other transaction under Rule 145 of the Securities Act, a
registration on any form that does not include substantially the same
information (other than the information required concerning the selling
shareholder and plan of distribution) as would be required to be included in a
registration statement covering the sale of the Registrable Securities, or a
registration in which the only Common Shares being registered are Common Shares
issuable upon conversion of debt securities that are also being registered),
Company will, at such time, promptly give ▇▇▇▇ written notice of such
registration. Upon the written request of ▇▇▇▇ within twenty (20) days after
mailing of such notice by Company, Company will, subject to the provisions of
Section 1.4(c), use its commercially reasonable efforts to cause to be
registered under the Securities Act all of the Registrable Securities that ▇▇▇▇
has requested to be registered, so long as the Registrable Securities to be
registered shall result in an anticipated aggregate offering price of at least
$1,000,000.
(b) Company will have the right to terminate or withdraw any
registration initiated by it under this Section 1.4 prior to the effectiveness
of such registration whether or not ▇▇▇▇ has elected to include securities in
such registration. The expenses of such withdrawn registration shall be borne by
Company in accordance with Section 1.8 hereof.
(c) In connection with any offering involving an underwriting
of shares of Company's capital stock, Company will not be required under this
Section 1.4 to include any of Dana's securities in such underwriting unless they
accept the terms of the underwriting as agreed upon between Company and the
underwriters selected by Company and
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enter into an underwriting agreement in customary form (which shall include
customary representations, warranties and indemnities) with an underwriter or
underwriters selected by Company. If the total amount of securities, including
Registrable Securities, requested by shareholders to be included in such
offering exceeds the amount of securities to be sold other than by Company that
the underwriters determine in their sole discretion is compatible with the
success of the offering, then Company will be required to include in the
offering only that number of such securities, including Registrable Securities,
that the underwriters determine in their sole discretion will not jeopardize the
success of the offering (the securities so included to be apportioned first to
the Company, then to ▇▇▇▇ and thereafter pro rata among the selling shareholders
according to the total amount of securities entitled to be included therein
owned by each selling shareholder or in such other proportions as mutually
agreed to by such selling shareholders).
1.5 FORM S-3 REGISTRATION
If, at any time within the ninety (90) days following a Rule 144(k)
Negative Determination, Company receives from ▇▇▇▇ a written request that
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all (but not less than all) of the Registrable
Securities, Company will use commercially reasonable efforts to effect, as
expeditiously as possible, such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale
and distribution of all (but not less than all) of the Registrable Securities.
However, Company will not be obligated to effect any such registration,
qualification or compliance pursuant to this Section 1.5:
(a) if Form S-3 is not legally available for such offering by
▇▇▇▇;
(b) if Company delivers to ▇▇▇▇ a certificate signed by the
Chief Executive Officer or Chairman of the Board of Company stating that in the
good faith judgment of the Board of Directors of Company, it would have a
material adverse effect on Company and its stockholders for such Form S-3
registration to be effected at such time, in which event Company will have the
right to defer the filing of the Form S-3 for such period as may be required to
mitigate the adverse effect on Company but in no event shall such period of
deferral exceed one hundred and twenty (120) days after receipt of the request
of ▇▇▇▇ under this Section 1.5, provided, however, that Company may not utilize
this right more than once and provided, further, that Company may not register
any other of its shares for its own account or for the account of others during
such one hundred and twenty (120) day period; or
(c) in any particular jurisdiction in which Company would be
required to qualify to do business, where not otherwise required, or to execute
a general consent to service of process in effecting such registration,
qualification or compliance.
1.6 OBLIGATIONS OF COMPANY
Whenever required under Sections 1.4 and 1.5 to effect the
registration of any Registrable Securities, Company will, as expeditiously as
possible (with respect to registration pursuant to Section 1.5, "registration
statement" in this Section 1.6 shall mean "Form S-3"):
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(a) prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use commercially reasonable
efforts to cause such registration statement to become effective as
expeditiously as possible, and, upon the request of ▇▇▇▇, keep such registration
statement effective for a period of up to one hundred twenty (120) days or, if
earlier, until the distribution contemplated in the registration statement has
been completed;
(b) notify ▇▇▇▇ of the effectiveness of the registration
statement; and prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement;
(c) furnish to ▇▇▇▇ such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as it may reasonably request in order
to facilitate the disposition of the Registrable Securities;
(d) use commercially reasonable efforts to (i) register and
qualify the securities covered by such registration statement under such other
securities or "blue sky" laws of such jurisdictions as may be reasonably
requested by ▇▇▇▇, and do all other acts and things that may be necessary or
desirable to enable ▇▇▇▇ to consummate its public sale or other disposition of
the Registrable Securities in such states; provided, that Company will not be
required in connection therewith or as a condition thereto to qualify to do
business, where not otherwise required, or to file a general consent to service
of process in any such states or jurisdictions, unless Company is already
subject to service in such jurisdiction and except as may be required by the
Securities Act and (ii) cause such Registrable Securities to be registered with
or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of Company to enable the
disposition of such Registrable Securities;
(e) in the event of any underwritten public offering, enter
into and perform its obligations under the underwriting agreement, in usual and
customary form, with the managing underwriter of such offering and take all
other reasonable action, if any, as ▇▇▇▇ and such managing underwriter shall
reasonably request (for example, to participate in the due diligence process and
roadshow process) in order to facilitate any disposition of the securities;
(f) notify ▇▇▇▇, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of (i) the
issuance of any stop order by the SEC suspending the effectiveness of such
registration statement or the initiation of any proceedings by any Person to
such effect, and promptly use commercially reasonable efforts to obtain the
release of such suspension, or (ii) the occurrence of any event as a result of
which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and promptly furnish to ▇▇▇▇ copies of a supplement or amendment
of such prospectus as may be necessary to correct such misstatement or omission.
As such a notice would suspend Dana's ability to use the prospectus, Company's
obligation to maintain the effectiveness of the registration statement shall be
extended by the number of days during which Dana's use of the prospectus is so
suspended;
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(g) cause all Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by Company are then listed;
(h) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration and use commercially reasonable efforts to cause the transfer agent
to remove restrictive legends on the securities covered by such registration;
and
(i) use commercially reasonable efforts to furnish, at the
request of ▇▇▇▇, on the date that such Registrable Securities are delivered to
the underwriters for sale in connection with a registration pursuant to Sections
1.4 and 1.5, if such securities are being sold through underwriters (i) an
opinion, dated as of such date, of the counsel representing Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably satisfactory to
▇▇▇▇, addressed to the underwriters and to ▇▇▇▇ requesting registration of
Registrable Securities, and (ii) a "comfort" letter dated as of such date, from
the independent certified public accountants of Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering and reasonably satisfactory to
▇▇▇▇, addressed to the underwriters and to ▇▇▇▇.
1.7 INFORMATION FROM ▇▇▇▇
It is a condition precedent to the obligations of Company to take any
action pursuant to Section 1.4 and 1.5 with respect to the Registrable
Securities that ▇▇▇▇ ▇▇▇▇▇▇▇ to Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as may reasonably be requested by Company or the managing
underwriter in order to satisfy the requirements applicable to such registration
of Dana's Registrable Securities.
1.8 EXPENSES OF REGISTRATION
All expenses (other than underwriting discounts, commissions relating
to Registrable Securities, and expenses of counsel for ▇▇▇▇) incurred in
connection with registrations, filings or qualifications pursuant to Sections
1.4 and 1.5, including, without limitation, all registration, filing and
qualification fees (including "blue sky" fees), printers' and accounting fees
(excluding fees related to any special audits), fees and disbursements of
counsel for Company will be borne by Company. Notwithstanding the foregoing,
Company will not be required to pay for any expenses of any registration
pursuant to Sections 1.4 and 1.5 if the registration request is subsequently
withdrawn at the request of ▇▇▇▇, in which case such expenses shall be borne by
▇▇▇▇.
1.9 DELAY OF REGISTRATION
▇▇▇▇ has no right to obtain or seek an injunction restraining or
otherwise delaying any such registration as the result of any controversy that
might arise with respect to the interpretation or implementation of this Section
1.
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1.10 INDEMNIFICATION
In the event any Registrable Securities are included in a registration
statement under Sections 1.4 and 1.5:
(a) To the fullest extent permitted by law, Company covenants
and agrees to indemnify and hold harmless ▇▇▇▇, its officers and directors and
each Person, if any, who controls ▇▇▇▇, within the meaning of the Securities Act
or the Exchange Act (the "Indemnified Persons"), from and against any and all
losses, claims, actions, damages, liabilities and expenses (joint or several)
(including, without limitation, attorneys' fees and disbursements and all other
expenses incurred in investigating, preparing, compromising or defending against
any such litigation, commenced or threatened, or any claim whatsoever and all
amounts paid in settlement of any such claim or litigation) to which any of such
Indemnified Persons may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, or at common law or
otherwise (collectively "Losses") as incurred, insofar as such Losses arise out
of or are based upon any of the following (collectively a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by Company of the Securities Act, the
Exchange Act, any state securities laws or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities laws and
Company will reimburse any Person intended to be indemnified pursuant to this
Section 1.10(a), for any legal or other expenses reasonably incurred by such
Person in connection with investigating or defending any such Loss; provided,
however, that the indemnity agreement contained in this Section 1.10(a) will not
apply to amounts paid in settlement of any such Loss if such settlement is
effected without the consent of Company (which consent will not be unreasonably
withheld), nor will Company be liable in any such case for any such Loss to the
extent that it arises out of or is based upon a Violation that solely occurs in
reliance upon and in conformity with information provided by and relating to an
Indemnified Person, that is furnished expressly for use in connection with such
registration by such Indemnified Person; provided further, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of ▇▇▇▇ or any underwriter, or any Person controlling
▇▇▇▇ or such underwriter, from whom the Person asserting any such Losses
purchased shares in the offering, if a copy of the prospectus (as then amended
or supplemented if Company shall have timely furnished the indemnified Person
with any amendments or supplements thereto) was not sent or given by or on
behalf of ▇▇▇▇ or such underwriter to such Person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
shares to such Person, and if the prospectus (as so amended or supplemented)
would have cured the defect giving rise to such Loss.
(b) To the fullest extent permitted by law, ▇▇▇▇ covenants and
agrees to indemnify and hold harmless Company, each of its directors, each of
its officers who has signed the registration statement, each Person, if any, who
controls Company within the meaning of the Securities Act, any underwriter, any
other shareholder selling securities in such registration statement and any
controlling Person of any such underwriter or other shareholder,
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against any Losses to which any of the foregoing Persons may become subject,
under the Securities Act, the Exchange Act or any other federal or state
statutory law or regulation or at common law or otherwise, insofar as such
Losses arise out of or are based upon any Violation (but excluding clause (iii)
of the definition thereof), in each case to the extent (and only to the extent)
that such Violation solely occurs in reliance upon and in conformity with
information provided by and relating to ▇▇▇▇ that is furnished by ▇▇▇▇ expressly
for use in connection with such registration statement; and ▇▇▇▇ will reimburse
any Person intended to be indemnified pursuant to this Section 1.10(b), for any
legal or other expenses reasonably incurred by such Person in connection with
investigating or defending any such Loss; provided further that in no event will
any indemnity under this Section 1.10(b) apply to amounts paid in settlement of
any such Loss if such settlement is effected without the written consent of
▇▇▇▇, which consent shall not be unreasonably withheld; provided further that in
no event will any indemnity under this Section 1.10(b) exceed the gross proceeds
from the sale of Registrable Securities received by ▇▇▇▇.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of any claim or the commencement of any action (including any
governmental action) as to which indemnity may be sought, such indemnified party
will deliver to the indemnifying party a written notice of the commencement
thereof (but the failure to so notify an indemnifying party will not relieve it
from any liability or obligation which it may have under this Section 1.10 or
otherwise unless the failure to notify results in the forfeiture by the
indemnifying party of substantial rights and defenses and will not in any event
relieve the indemnifying party from any obligations other than the
indemnification provided for herein). The indemnifying party will have the right
to participate in, and, to the extent the indemnifying party so desires, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. However, the indemnified party will have the right to retain
separate counsel and to participate in the defense thereof, with the fees and
expenses of such counsel to be paid by the indemnifying party, if representation
of such indemnified party by the counsel retained by the indemnifying party
would be, in the indemnified party's view, inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. In no event will the
indemnifying party be required to pay the expenses of more than one counsel per
jurisdiction as counsel for the indemnified party. The indemnifying party will
be responsible for the expenses of such defense even if the indemnifying party
does not elect to assume such defense. No indemnifying party may, except with
the consent of the indemnified party, consent to the entry of any judgment or
enter into any settlement which does not include as a term thereof the
unconditional release of the indemnified party of all liability in respect of
such claim or litigation.
(d) If the indemnification provided for in this Section 1.10
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any Loss referred to herein, then the indemnifying party,
in lieu of indemnifying such indemnified party hereunder, will contribute to the
amount paid or payable by such indemnified party as a result of such Loss in
such proportion as is appropriate to reflect the relative fault of and the
relative benefits received by the indemnifying party on the one hand and of the
indemnified party on the other in connection with the Violations that resulted
in such Loss as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party will be
determined by reference to, among other things, whether the Violation
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relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such Violation. The relative benefits received
by the indemnifying party and the indemnified party will be determined by
reference to the net proceeds received by each such party.
(e) In no event will any contribution by ▇▇▇▇ under this
Section 1.10 exceed the gross proceeds from the sale of Registrable Securities
received by ▇▇▇▇.
(f) Notwithstanding the foregoing, no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to indemnification or contribution from any
Person not so guilty.
(g) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement will control.
(h) The obligations of Company and ▇▇▇▇ under this Section
1.10 will survive the completion of any offering of Registrable Securities in a
registration statement under Section 1.4 and 1.5 and otherwise.
(i) The foregoing indemnification provisions are in addition
to, and not in derogation of, any statutory, equitable or common-law remedy any
party may otherwise have.
1.11 REPORTS UNDER THE EXCHANGE ACT
With a view to making available to ▇▇▇▇ the benefits of Rule 144
promulgated under the Securities Act, Company agrees:
(a) to file with the SEC in a timely manner all reports and
other documents required of Company under the Securities Act and the Exchange
Act; and
(b) to furnish to ▇▇▇▇, forthwith upon request (i) a written
statement by Company as to its compliance with the reporting requirements of
Rule 144 under the Securities Act and of the Securities Act and the Exchange Act
(at any time after it has become subject to such reporting requirements), or
that it qualifies as a registrant whose securities may be resold pursuant to
Form S-3 (at any time after it so qualifies), (ii) a copy of the most recent
annual or quarterly report of Company filed by Company under the Exchange Act
and (iii) such other information as ▇▇▇▇ ▇▇▇ reasonably request in order to
avail itself of any similar rule or regulation of the SEC that permits the
selling of any such securities without registration or pursuant to such form.
1.12 TERMINATION OF REGISTRATION RIGHTS
Subject to Sections 1.5 and 1.13 hereof, ▇▇▇▇ will not be entitled to
exercise any right provided for in this Section 1 after the expiration of the
Lock-Up Period unless a registration statement involving the Registrable
Securities is pending on the date of such
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expiration, in which case ▇▇▇▇ will be entitled to exercise any right and
Company will be required to perform all of its obligations provided for in this
Section 1 in connection with such registration statement until such statement
becomes effective or is withdrawn under circumstances where withdrawal is
permitted hereunder.
1.13 DETERMINATION OF AVAILABILITY OF RULE 144(K) OF THE SECURITIES ACT
At any time on or after the ninetieth (90th) day (or the next business
day) prior to the end of the Lock-Up Period, upon the written request of ▇▇▇▇,
Company shall promptly ▇▇▇▇▇▇▇ ▇▇▇▇ with a written statement by Company as to
Company's compliance with the reporting requirements of Rule 144 of the
Securities Act, and promptly thereafter Company and ▇▇▇▇ shall make a mutual
determination as to whether ▇▇▇▇ ▇▇▇ be able to sell all of the Common Shares it
desires to sell at the end of the Lock-Up Period without restrictions under Rule
144(k) of the Securities Act. Company and ▇▇▇▇ shall base its determination with
respect to ▇▇▇▇ solely upon the factual information ▇▇▇▇ provides to Company in
Dana's written request to Company, which factual information shall be certified
by an executive officer of ▇▇▇▇. If Company and ▇▇▇▇ mutually determine in good
faith that ▇▇▇▇ is not able to sell the Common Shares at the end of the Lock-Up
Period without restrictions under Rule 144(k) of the Securities Act, such
determination shall be referred to as a "Rule 144(k) Negative Determination",
and Section 1.5 hereof shall then apply.
2. MISCELLANEOUS
2.1 NO IMPLIED RESTRICTIONS
Except and to the extent provided herein, ▇▇▇▇ shall be entitled to
exercise all rights in its capacity as a record and beneficial owner of Common
Shares under any applicable law and Company's Certificate of Incorporation and
Bylaws, including the right to receive dividends and vote in connection with any
matter upon which shareholders of the Company may vote.
2.2 PURCHASE PRICE ADJUSTMENT
The Parties acknowledge that under certain circumstances described in
Article 3 of the Purchase Agreement, ▇▇▇▇ ▇▇▇ transfer some portion of the
Common Shares to Company in accordance with the terms thereof.
2.3 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
2.4 THIRD PARTY BENEFICIARIES
Each party hereto intends that this Agreement does not benefit or
create any legal or equitable right, remedy or claim in or on behalf of any
Person other than the parties hereto. This Agreement is for the sole and
exclusive benefit of the parties hereto and their successors and permitted
assigns.
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2.5 COUNTERPARTS
This Agreement may be executed in counterparts, each of which will be
deemed an original and all of which together will constitute one and the same
instrument.
2.6 CAPTIONS; REFERENCES
The captions contained in this Agreement are for convenience of
reference only and do not form a part of this Agreement. When a reference is
made in this Agreement to a clause or a Section, such reference will be to a
clause or a Section of this Agreement unless otherwise indicated.
2.7 NOTICES
Any notice or other communication provided for herein or given
hereunder to a party hereto will be sufficient if in writing, and sent by
facsimile transmission (electronically confirmed), delivered in person, mailed
by first class registered or certified mail, postage prepaid, or sent by Federal
Express or other overnight courier of national reputation, addressed as follows:
If to Company:
Standard Motor Products, Inc.
▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇:
▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
North Point
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address with respect to a party as such party notifies the
other in writing as above provided.
2.8 AMENDMENTS AND WAIVERS
This Agreement may be amended or modified only by a written agreement
referencing this Agreement and duly executed by the parties hereto. No waiver by
any party hereto of any term of this Agreement, whether intentional or not,
shall be deemed to extend to any prior or subsequent any term of this Agreement
or affect in any way any rights arising by virtue of any prior or subsequent
such occurrence.
2.9 SEVERABILITY
Any term or provision of this Agreement that is invalid or
unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision is to be interpreted to be only
so broad as is enforceable.
2.10 GOVERNING LAW This Agreement is to be governed by, and construed
and enforced in accordance with, the laws of the State of New York, without
giving effect to any choice or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
2.11 SUBMISSION TO JURISDICTION
Each of the parties hereto submits to the jurisdiction of any state or
federal court sitting in the County of New York, New York in any action or
proceeding arising out of or relating to this Agreement and agrees that all
claims in respect of the action or proceeding may be heard and determined in any
such court. Each party hereto also agrees not to bring any action or proceeding
arising out of or relating to this Agreement in any other court. Each of the
parties hereto waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety, or other
security that might be required of any other party with respect thereto. Any
party hereto may make service on the other party by sending or delivering a copy
of the process to the party to be served at the address and in the manner
provided for the giving of notices in Section 2.7 above. Nothing in this Section
2.11, however,
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shall affect the right of any party hereto to bring any action or proceeding
arising out of or relating to this Agreement in any other court or to serve
legal process in any other manner permitted by law or in equity. Each party
hereto agrees that a final judgment in any action or proceeding so brought shall
be conclusive and may be enforced by suit on the judgment or in any other manner
provided by law or in equity.
2.12 FURTHER ASSURANCES
▇▇▇▇ and Company will from time to time and at all times hereafter
make, do, execute, or cause or procure to be made, done and executed such
further acts, deeds, conveyances, consents and assurances without further
consideration, which may reasonably be required to effect the transactions
contemplated by this Agreement.
2.13 COMPLETE AGREEMENT
This Agreement contains the complete and exclusive statement of the
terms of the agreements between the parties hereto with respect to the
transactions contemplated hereby and supersedes all prior agreements and
understandings between the parties hereto with respect thereto.
2.14 CONSTRUCTION
This Agreement is the result of the joint efforts of ▇▇▇▇ and Company,
and each provision hereof has been subject to the mutual consultation,
negotiation and agreement of the parties and there is to be no construction
against either party based on any presumption of that party's involvement in the
drafting thereof.
2.15 EXPENSES
All costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby are to be paid by the party incurring such
expenses, except as expressly provided herein.
(Signatures are on the following page.)
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IN WITNESS WHEREOF, the parties hereto have executed this Share
Ownership Agreement as of the date first above written.
COMPANY:
STANDARD MOTOR PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇:
▇▇▇▇ CORPORATION
By: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇
Name: A. ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President-Treasurer