REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and effective as of __________
__, 1997, by and among KEYSTONE AUTOMOTIVE INDUSTRIES, INC., a California
corporation ("Keystone"), and the persons whose names appear on the signature
page under the caption "Shareholders" (collectively, the "Shareholders" and
individually a "Shareholder").
A. The Shareholders own substantially all the issued and outstanding
shares of the capital stock of North Star Plating Company, a Minnesota
corporation ("North Star").
B. Pursuant to that certain Agreement and Plan of Merger dated as of
December 6, 1996, by and among Keystone, North Star Merger, Inc., a wholly owned
subsidiary of Keystone (the "Subsidiary"), North Star and certain shareholders
of North Star, among other things, (i) the Subsidiary will be merged with and
into North Star (the "Merger"), (ii) all shares of the capital stock of North
Star issued and outstanding immediately prior to the Merger will be converted
into the right to receive an aggregate of 2,450,000 shares of the Common Stock
of Keystone (or approximately 25.1% of the shares of the Common Stock of
Keystone to be issued and outstanding immediately after the Merger) and (iii)
Ronald G. Brown, a director, officer and principal shareholder of North Star,
will become a director of Keystone.
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein and in the Merger Agreement, and intending to be legally bound hereby,
the parties agree as follows:
1. GRANT OF REGISTRATION RIGHTS.
(a) Whenever Keystone proposes to register any of its securities
under the Securities Act of 1933, as amended (the "Securities Act"), and the
registration form to be used therefor may be used for the registration of the
Common Stock of Keystone (other than Forms S-8 or S-4 or any successor thereto),
Keystone shall give prompt written notice to all holders of the shares of the
Common Stock of Keystone issued in exchange for shares of the Common Stock of
North Star pursuant to the Merger Agreement (collectively, the "Registerable
Shares") of its intention to effect such a registration and, subject to the
terms and conditions contained in this Agreement, shall include in such
registration up to 600,000 Registerable Shares (subject to adjustment in the
event of a stock split, stock combination or recapitalization of Keystone) with
respect to which Keystone has received written requests for inclusion therein
within five (5) days after Keystone has given the notice required by this
Section 1(a).
(b) If a registration subject to Section 1(a) is an underwritten
registration, and the managing underwriters advise Keystone in writing that in
their opinion the number of securities to
EXHIBIT 10.36
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be included in such registration exceeds the number which can be sold in such
offering, Keystone shall include in such registration (i) first, the securities
Keystone proposes to sell, (ii) second, such number of the Registerable Shares
(up to 600,000, subject to adjustment in the event of a stock split, stock
combination or recapitalization of Keystone) requested to be included in such
registration as the managing underwriters believe can be sold in such offering,
pro rata among the holders of such Registerable Shares on the basis of the
number of Registerable Shares owned by each such holder and (iii) third, other
securities requested to be included in such registration; PROVIDED, however,
that the Shareholders shall have the right to include any Registerable Shares
which are thus excluded from such registration in the next registration
statement of Keystone under the Securities Act which may be used for the
registration of the Common Stock of Keystone (other than Forms S-8 or S-4), all
on the terms and conditions set forth in this Agreement applicable to the
initial exercise by the Shareholders of registration rights hereunder.
(c) Except as expressly provided in the proviso to Section 1(b),
notwithstanding anything to the contrary contained in this Agreement, Keystone
shall be required to give notice to the holders of Registerable Shares of a
registration, and to include therein Registerable Shares, only with respect to
the first registration of the securities of Keystone occurring after the Merger.
2. GENERAL.
(a) Keystone shall indemnify, to the extent permitted by law, each
holder of Registerable Shares included in any registration statement pursuant to
Section 1(a), its officers and directors and each person who controls such
holder (within the meaning of the Securities Act of 1933, as amended) against
all losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to
Keystone by such holder expressly for use therein or by such holder's failure
to deliver a copy of the registration statement or prospectus or any amendments
or supplements thereto after Keystone has furnished such holder with a
sufficient number of copies of the same.
(b) Each holder of Registerable Shares included in any registration
statement pursuant to Section 1(a) shall indemnify, to the extent permitted by
law, Keystone, its officers and directors and each person who controls Keystone
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of
material fact contained in any registration statement, prospectus or preliminary
prospectus or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent the same are caused by or contained in any information
furnished in writing to Keystone by such holder expressly for use therein or by
such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after Keystone has furnished
such holder with a sufficient number of copies of the same. In connection with
an underwritten offering, such holder shall indemnify the underwriters,
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their officers and directors and each person who controls such underwriters
(within the meaning of the Securities Act) to the same extent as provided above
with respect to the indemnification of Keystone.
(c) With respect to each inclusion of Registerable Shares in a
registration statement pursuant to Section 1(a), all fees, costs and expenses of
and incidental to such registration and public offering in connection therewith
shall be borne by Keystone; PROVIDED, however, that holders participating in any
such registration shall bear their pro rata share of the underwriting discount
and commissions and shall bear their own legal and accounting expenses incurred
in reviewing independent of Keystone the registration statement or prospectus.
(d) Any Registerable Shares which are included in an underwritten
registration pursuant to Section 1(a) shall be sold by the holder thereof
pursuant to the terms of the underwriting agreement among Keystone, the managing
underwriters and the holders of the securities included in such registration.
3. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made by the parties hereto in this
Agreement (including, but not limited to, statements contained in any schedule
or certificate or other instrument delivered by or on behalf of any party hereto
or in connection with the transactions contemplated hereby) shall survive the
date hereof and any investigations, inspections, examinations or audits made by
or on behalf of any party.
4. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, relating to the subject matter of this Agreement. No
supplement, modification, waiver or termination of this Agreement shall be valid
unless executed by the party to be bound thereby. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
5. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given (i) if
personally delivered, when so delivered, (ii) if mailed, one (1) week after
having been placed in the mail, registered or certified, postage prepaid,
addressed to the party to whom it is directed at the address set forth on the
signature page hereof or (iii) if given by telex or telecopier, when such notice
or other communication is transmitted to the telex or telecopier number
specified on the signature page hereof and the appropriate answer back or
telephonic confirmation is received. Any party may change the address to which
such notices are to be addressed by giving the other parties notice in the
manner herein set forth.
6. GOVERNING LAW. The validity, construction and interpretation of this
Agreement shall be governed in all respects by the laws of the State of
California applicable to contracts made and to be performed wholly within that
State.
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7. HEADINGS. Section and subsection headings are not to be considered
part of this Agreement and are included solely for convenience and reference and
in no way define, limit or describe the scope of this Agreement or the intent of
any provisions hereof.
8. ATTORNEYS' FEES. In the event any party takes legal action to enforce
any of the terms of this Agreement, the unsuccessful party to such action shall
pay the successful party's expenses (including, but not limited to, attorneys'
fees and costs) incurred in such action.
9. THIRD PARTIES. Nothing in this Agreement, expressed or implied, is
intended to confer upon any person other than the parties hereto and their
successors and assigns any rights or remedies under or by reason of this
Agreement.
10. INJUNCTIVE RELIEF. Each party hereby acknowledges and agrees that it
would be difficult to fully compensate the other party for damages resulting
from the breach or threatened breach of any provision of this Agreement and,
accordingly, that each party shall be entitled to temporary and injunctive
relief, including temporary restraining orders, preliminary injunctions and
permanent injunctions, to enforce such provisions without the necessity of
proving actual damages or being required to post any bond or undertaking in
connection with any such action. This provision with respect to injunctive
relief shall not diminish, however, the right of either party to any other
relief or to claim and recover damages.
11. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each one of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
12. FURTHER ASSURANCES. Each party hereto shall, from time to time at and
after the date hereof, execute and deliver such instruments, documents and
assurances and take such further actions as the other party may reasonably
request to carry out the purpose and intent of this Agreement.
13. JURISDICTION.
(a) Each party hereto irrevocably submits to the non-exclusive
jurisdiction of any court of the State of California or the United States of
America sitting in the City of Los Angeles over any suit, action or proceeding
arising out of or relating to this Agreement. To the fullest extent it may
effectively do so under applicable law, each party irrevocably waives and agrees
not to assert, by way of motion, as a defense or otherwise, any claim that it is
not subject to the jurisdiction of any such court, any objection that it may now
or hereafter have to the establishment of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
(b) Each party hereto agrees, to the fullest extent it may
effectively do so under applicable law, that a judgment in any suit, action or
proceeding of the nature referred to hereinabove brought in any such court shall
be conclusive and binding upon such person and its successors and
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assigns and may be enforced in the courts of the United States of America or the
State of California (or any other courts to the jurisdiction of which such
person is or may be subject) by a suit upon such judgment.
(c) Each party hereto consents to process being served in any suit,
action or proceeding of the nature referred to hereinabove by mailing a copy
thereof by registered or certified mail, postage prepaid, return receipt
requested, to the address of the other set forth in Section 16. Each party
agrees that such service (i) shall be deemed in every respect effective service
of process upon such person in any such suit, action or proceeding and (ii)
shall, to the fullest extent permitted by law, be taken and held to be valid
personal service upon and personal delivery to such Person.
14. SEVERABLE PROVISIONS. If any term, provision, covenant or restriction
herein, or the application thereof to any circumstance, shall, to any extent, be
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions herein and
the application thereof to any other circumstances, shall remain in full force
and effect, shall not in any way be affected, impaired or invalidated, and shall
be enforced to the fullest extent permitted by law.
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Agreement as of the day and year first above written.
KEYSTONE: KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
By
-----------------------------------
Charles J. Hogarty, Chief Operating Officer
700 East Bonita Avenue
Pomona, California 91767
SHAREHOLDERS:
-------------------------------------
RONALD G. BROWN
2001 Crestview Lane
Brainerd, Minnesota 56401
Number of shares: 4,272.2625
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-------------------------------------
KIM D. WOOD
12415 44th Avenue, North
Plymouth, Minnesota 55442
Number of shares: 357.75
-------------------------------------
KAREN WOOD
12415 44th Avenue, North
Plymouth, Minnesota 55442
Number of shares: 112.75
-------------------------------------
Kim D. Wood as Trustee under the Kathryn
Wood Irrevocable Trust Agreement dated
August 15, 1990
12415 44th Avenue, North
Plymouth, Minnesota 55442
Number of shares: 112.75
-------------------------------------
Kim D. Wood as Trustee under the Kristine
Wood Irrevocable Trust Agreement dated
August 15, 1990
12415 44th Avenue, North
Plymouth, Minnesota 55442
Number of shares: 112.75
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